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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 AHKIN RAYMOND MILLS, 7 Case No. 14-cv-00255-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE 9 GARY SWARTHOUT, 10 Defendant. United States District Court Northern District of California 11 12 13 I. INTRODUCTION Petitioner Ahkin Raymond Mills seeks federal habeas relief under 28 U.S.C. § 2254 from 14 15 his state conviction. The petition for such relief is here for review under 28 U.S.C. § 2243 and 16 Rule 4 of the Rules Governing Section 2254 Cases. Respondent Gary Swarthout shall file a 17 response to the petition on or before June 30, 2017.1 18 II. BACKGROUND On August 12, 2009, the Alameda County Superior Court sentenced Mills to an 19 20 indeterminate term of twenty-five years-to-life, enhanced by twenty-five-years-to-life, following a 21 jury’s verdict on May 12, 2009, of guilty of one count of first-degree murder in violation of 22 California Penal Code § 187, with a finding of firearm discharge under California Penal Code § 23 12022.53(d)(1). He appealed his conviction and sentence to the Court of Appeal, which affirmed 24 the conviction and judgment, and then to the California Supreme Court, which also affirmed in an 25 order filed October 18, 2012. The instant petition was filed on January 16, 2014, within a year of 26 the date on which the 90-day statutory period for filing a petition for writ of certiorari from the 27 1 28 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). 1 United States Supreme Court expired. Mills is presently in custody at the High California State Prison - Solano in Vacaville, 2 3 California. 4 III. ANALYSIS This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 5 custody pursuant to the judgment of a State court only on the ground that he is in custody in 7 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 8 district court considering an application for a writ of habeas corpus shall “award the writ or issue 9 an order directing the respondent to show cause why the writ should not be granted, unless it 10 appears from the application that the applicant or person detained is not entitled thereto.” 28 11 United States District Court Northern District of California 6 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 12 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 13 908 F.2d 490, 491 (9th Cir. 1990). As grounds for federal habeas relief, Mills asserts that the trial court prejudicially violated 14 15 his Sixth and Fourteenth Amendment rights to due process and jury trial when it instructed the 16 jury to accept a conclusive presumption that he was legally sane for purposes of the guilt phase of 17 the trial. When liberally construed, these claims are cognizable in a federal habeas corpus action. 18 IV. 19 CONCLUSION 1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a 20 magistrate judge jurisdiction consent or declination form on Respondent and Respondent’s 21 counsel, the Attorney General for the State of California. 22 2. No later than June 30, 2017, Respondent shall file an answer conforming in all respects 23 to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 24 should not be granted based on Mills’s claims. Respondent shall file with the answer all portions 25 of the state trial record that previously have been transcribed and that are relevant to a 26 determination of the issues presented by the petition. 27 28 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. 2 1 4. In lieu of an answer, Respondent may file, no later than June 30, 2017, a motion to 2 dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of the 3 Rules Governing Section 2254 Cases. If Respondent files such a motion, Mills shall file an 4 opposition or statement of non-opposition within thirty (30) days of the date the motion is filed, 5 and Respondent shall file a reply within fifteen (15) days of the date any opposition is filed. 6 5. Upon a showing of good cause, requests for a reasonable extension of time will be granted 7 provided they are filed on or before the deadline they seek to extend. 8 9 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: March 28, 2017 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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