Ahkin Mills-v-Gary Swarthout

Filing 7

ORDER TO SHOW CAUSE why writ of habeas corpus should not issue. Habeas Answer or Dispositive Motion due by 6/30/2017. Signed by Judge Joseph C. Spero on March 28, 2017. (jcslc1S, COURT STAFF) (Filed on 3/28/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AHKIN RAYMOND MILLS,

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Case No. 14-cv-00255-JCS

Plaintiff,
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v.

ORDER TO SHOW CAUSE

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GARY SWARTHOUT,

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Defendant.

United States District Court
Northern District of California

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I.

INTRODUCTION
Petitioner Ahkin Raymond Mills seeks federal habeas relief under 28 U.S.C. § 2254 from

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his state conviction. The petition for such relief is here for review under 28 U.S.C. § 2243 and

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Rule 4 of the Rules Governing Section 2254 Cases. Respondent Gary Swarthout shall file a

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response to the petition on or before June 30, 2017.1

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II.

BACKGROUND
On August 12, 2009, the Alameda County Superior Court sentenced Mills to an

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indeterminate term of twenty-five years-to-life, enhanced by twenty-five-years-to-life, following a

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jury’s verdict on May 12, 2009, of guilty of one count of first-degree murder in violation of

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California Penal Code § 187, with a finding of firearm discharge under California Penal Code §

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12022.53(d)(1). He appealed his conviction and sentence to the Court of Appeal, which affirmed

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the conviction and judgment, and then to the California Supreme Court, which also affirmed in an

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order filed October 18, 2012. The instant petition was filed on January 16, 2014, within a year of

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the date on which the 90-day statutory period for filing a petition for writ of certiorari from the

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Petitioner, the only party yet to appear in this action, has consented to the jurisdiction of the
undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).

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United States Supreme Court expired.
Mills is presently in custody at the High California State Prison - Solano in Vacaville,

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California.

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III.

ANALYSIS
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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

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

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district court considering an application for a writ of habeas corpus shall “award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto.” 28

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United States District Court
Northern District of California

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U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

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vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez,

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908 F.2d 490, 491 (9th Cir. 1990).
As grounds for federal habeas relief, Mills asserts that the trial court prejudicially violated

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his Sixth and Fourteenth Amendment rights to due process and jury trial when it instructed the

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jury to accept a conclusive presumption that he was legally sane for purposes of the guilt phase of

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the trial. When liberally construed, these claims are cognizable in a federal habeas corpus action.

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IV.

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CONCLUSION
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a

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magistrate judge jurisdiction consent or declination form on Respondent and Respondent’s

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counsel, the Attorney General for the State of California.

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2. No later than June 30, 2017, Respondent shall file an answer conforming in all respects

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to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be granted based on Mills’s claims. Respondent shall file with the answer all portions

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of the state trial record that previously have been transcribed and that are relevant to a

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determination of the issues presented by the petition.

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3. If Mills wishes to respond to the answer, he shall do so by filing a traverse with the
Court within thirty (30) days of the date the answer is filed.
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4. In lieu of an answer, Respondent may file, no later than June 30, 2017, a motion to

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dismiss on procedural grounds, 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, Mills shall file an

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opposition or statement of non-opposition within thirty (30) days of the date the motion is filed,

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and Respondent shall file a reply within fifteen (15) days of the date any opposition is filed.

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5. Upon a showing of good cause, requests for a reasonable extension of time will be granted

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provided they are filed on or before the deadline they seek to extend.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: March 28, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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