Johnson v. Lopez et al

Filing 5

ORDER TO SHOW CAUSE AND DENYING REQUEST FOR EVIDENTIARY HEARING. The clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the Stat e of California. Ther clerk shall also serve a copy of this order on petitioner. Respondent's answer is due 9/30/11, petitioner's optional traverse is due 10/31/11. Petitioner's motion for an evidentiary hearing is DENIED without prejudice. (SI, COURT STAFF) (Filed on 8/1/2011) Modified on 8/2/2011 (ys, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY JOHNSON,

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United States District Court
For the Northern District of California

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No. C 11-03530 SI

Petitioner,

ORDER TO SHOW CAUSE AND
DENYING REQUEST FOR
EVIDENTIARY HEARING

v.
RAUL LOPEZ, WARDEN,
Respondent.

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Anthony Johnson, an inmate of the California Department of Corrections, filed this action for
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a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review
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pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases.
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BACKGROUND
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The petition provides the following information: Johnson was convicted in San Francisco
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Superior Court of first degree murder, use of a firearm in commission of crime, being a felon in
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possession of a firearm, possession of cocaine base for sale, possession of cocaine while armed with a
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firearm, and misdemeanor resisting arrest. On October 26, 2007, he was sentenced to twenty five years
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to life on the murder count and an additional term of twenty five years for the use of the firearm in the
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murder, for a total sentence of fifty years to life. Johnson appealed, and his conviction was affirmed.
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The California Supreme Court denied Johnson’s petition for review on July 28, 2010. Johnson filed a
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petition for writ of habeas corpus in the Supreme Court of California. That petition was denied on
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February 16, 2011.
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DISCUSSION

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This court may entertain a petition for writ of habeas corpus “in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation of the

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court considering

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an application for a writ of habeas corpus shall “award the writ or issue an order directing the

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respondent to show cause why the writ should not be granted, unless it appears from the application that

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the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is

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appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or

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patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

United States District Court
For the Northern District of California

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The petition alleges the following: (1) Petitioner was denied his right to counsel under the Sixth

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and Fourteenth Amendments; (2) admission of testimony concerning a proposed plea agreement violated

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his rights under the Fifth, Sixth and Fourteenth Amendments; (3) admission of testimony concerning

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a self-defense theory violated his rights under the Fifth, Sixth and Fourteenth Amendments; (4)

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admission of testimony regarding his offer to plead guilty violated his rights under the Fifth, Sixth and

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Fourteenth Amendments; (5) his attorney’s failure to object to the foregoing testimony constituted

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ineffective assistance of counsel in violation of the Sixth Amendment; (6) the trial court’s exclusion of

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a statement from an unnamed informant violated his rights under the Fifth, Sixth and Fourteenth

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Amendments; (7) the questioning of petitioner’s knowledge and use of firearms violated his rights under

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the Fifth, Sixth and Fourteenth Amendments; (8) exclusion of testimony regarding the victim’s gang

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membership violated Petitioner’s rights under the Sixth Amendment; and (9) the trial court’s

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questioning and excusing of a juror violated his rights under the Fifth, Sixth and Fourteenth

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Amendments. Liberally construed, the claims appear to be cognizable in a federal habeas action.

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MOTION FOR EVIDENTIARY HEARING

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Petitioner has also filed a request for an evidentiary hearing regarding his claims of ineffective

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assistance of counsel. Docket No. 2. This request is foreclosed by the Supreme Court’s decision in

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Cullen v. Pinholster, 131 S. Ct. 1388 (2011). In that case the Supreme Court held that where habeas

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claims had been decided on their merits in state court, a federal court’s review under 28 U.S.C. section
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2254(d)(1) – whether the state court determination was contrary to or an unreasonable application of

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established federal law – must be confined to the record that was before the state court. 131 S. Ct. at

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1398. The Pinholster Court specifically found that the District Court should not have held an

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evidentiary hearing regarding Pinholster’s claims of ineffective assistance of counsel until after the

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Court determined that the petition survived review under Section 2254(d)(1). Id., at 1398. Therefore,

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the Court will deny without prejudice Johnson’s motion for an evidentiary hearing. The motion may be

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renewed if, after full briefing, the Court determines that some or all of Johnson’s claims survive review

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under Section 2254(d)(1).

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CONCLUSION

United States District Court
For the Northern District of California

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For the foregoing reasons,

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1.

The petition states cognizable claims for habeas relief and warrants a response.

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2.

The clerk shall serve by certified mail a copy of this order, the petition and all

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attachments thereto upon respondent and respondent’s attorney, the Attorney General of the State of

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California. The clerk shall also serve a copy of this order on petitioner.

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3.

Respondent must file and serve upon petitioner, on or before September 30, 2011, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause

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why a writ of habeas corpus should not be issued. Respondent must file with the answer a copy of all

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portions of the court proceedings that have been previously transcribed and that are relevant to a

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determination of the issues presented by the petition.

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4.

If petitioner wishes to respond to the answer, he must do so by filing a traverse with the

court and serving it on respondent on or before October 31, 2011.
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Petitioner’s motion for an evidentiary hearing is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: August 1, 2011
SUSAN ILLSTON
United States District Judge

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