Johnson v. Faulk

Filing 6

ORDER TO SHOW CAUSE, Motions and Granting 4 MOTION for Leave to Proceed in forma pauperis filed by LaPatrick A. Johnson. Habeas Answer due by 5/7/2013.. Signed by Judge Charles R. Breyer on 3/7/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 3/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LaPATRICK A. JOHNSON, G62253,

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Petitioner,

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vs.
RON BARNES, Acting Warden,
Respondent.

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No. C 12-5897 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 4)

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Petitioner, a prisoner incarcerated at High Desert State Prison (HDSP), has

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filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging a conviction from Alameda County Superior Court. He also seeks to

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proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of two counts of committing a lewd act

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on a child. The court also found that petitioner had suffered seven prior

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convictions and had served six prior prison terms. On June 2, 2009, he was

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sentenced to 55 years to life in state prison.

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Petitioner unsuccessfully appealed his conviction to the California Court

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of Appeal and the Supreme Court of California. He also unsuccessfully sought

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collateral relief from the state courts. On October 10, 2012, the Supreme Court

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of California denied his final state petition for a writ of habeas corpus.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

Claims

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Petitioner seeks federal habeas corpus relief by raising several claims,

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including ineffective assistance of counsel, suppression of material evidence,

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prosecutorial misconduct, evidentiary and instructional error, and insufficiency of

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the evidence. Liberally construed, the claims appear minimally cognizable under

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§ 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d

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1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs

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of habeas corpus liberally).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 4) is

GRANTED.

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2.

The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a
traverse with the court and serving it on respondent within 30 days of his receipt
of the answer.
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Respondent may file a motion to dismiss on procedural grounds in

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lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner must serve and file an opposition or statement of non-opposition not

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more than 28 days after the motion is served and filed, and respondent must serve

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and file a reply to an opposition not more than 14 days after the opposition is

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served and filed.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent's

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED: March 7, 2013
CHARLES R. BREYER
United States District Judge

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