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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?