Cook v. Kernan et al

Filing 8

ORDER by Judge Laurel Beeler to show cause why a writ of habeas corpus should not be issued and granting 3 ex parte application for leave to proceed in forma pauperis. (lblc1S, COURT STAFF) (Filed on 2/2/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WALTER JOSEPH COOK III,
Petitioner,

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Re: ECF No. 1

SCOTT KERNAN, et al.,
Respondents.

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United States District Court
Northern District of California

ORDER TO SHOW CAUSE

v.

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Case No. 3:15-cv-06343-LB

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INTRODUCTION

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Petitioner Walter Joseph Cook III, an inmate at San Quentin State Prison, filed a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Cook’s petition is now before the court

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for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in

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the United States District Courts. This order requires the respondents to respond to the petition to

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show cause why the writ should not be granted.
STATEMENT

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On July 1, 1992, Mr. Cook was charged in the Municipal Court of San Mateo County via

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complaint with three counts of murder pursuant to California Penal Code §187, “with special

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allegation of multiple murder pursuant to Penal Code §190.2(a)(3).” (Petition, ECF No. 1 at 9.1)

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The information further charged Mr. Cook with the use of a deadly and dangerous weapon in

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connection with one murder and the use of a firearm in connection with two of the murders. (Id. at

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10.) “Mr. Cook pled not guilty to all counts, and denied all special allegations.” (Id. at 11.)

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The case proceeded to trial by jury. (Id. at 13.) “On June 23, 1994, the jury convicted Mr.

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Citations are to the Electronic Case File (“ECF”); pin cites are to the ECF-generated page
numbers at the tops of the documents.
ORDER (No. 3:15-cv-06343-LB)

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Cook of three counts of first-degree murder” and on July 25, 1995, the jury “returned the death

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verdict.” (Id. at 15.) “The trial court heard and denied Mr. Cook’s automatic motion for reduction

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and modification of death verdict” on September 2, 1994 and “imposed a sentence of death.” (Id.)

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“Mr. Cook’s convictions and sentence were automatically appealed to the California Supreme

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Court.” (Id. at 16.) The California Supreme Court affirmed the trial court’s judgment in its

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entirety. (Id. at 19.) During Mr. Cook’s state habeas appeal and at the direction of the California

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Supreme Court, Judge Parsons of the Superior Court of San Mateo County found Mr. Cook

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“mentally retarded,” within the meaning of Atkins v. Virginia, 536 U.S. 304 (2002). (Id. at 21.)

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Judge Parsons vacated Mr. Cook’s death sentence and “resentenced [him] to a term of life in
prison without the possibility of parole.” (Id.) “Respondent did not appeal Judge Parson’s Order,

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United States District Court
Northern District of California

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and the time for seeking direct review expired on January 5, 2015.” (Id.)

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On December 31, 2015, Mr. Cook filed the instant petition for writ of habeas corpus in this
court.
ANALYSIS

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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

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the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It shall “award the

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writ or issue an order directing the respondent to show cause why the writ should not be granted,

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

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28 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.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Mr. Cook asserts that his conviction, sentence and confinement were the result of violations of

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rights afforded by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

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Constitution, United States Supreme Court case law, Article 14 of the International Convention on

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Civil and Political Rights, and broader international law. Liberally construed, those claims based

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on the Constitution, laws and treaties of the United States appear colorable under 28 U.S.C. §

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2254 and merit an answer from respondents.
ORDER (No. 3:15-cv-06343-LB)

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CONCLUSION

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For the foregoing reasons and for good cause shown
1. The clerk shall serve by certified mail a copy of this order and the petition and all

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attachments thereto upon the respondents. The clerk shall also serve a copy of this

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order on the petitioner.

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2. Respondents shall file with the court and serve on petitioner, within 60 days of the date

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of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

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United States District Court
Northern District of California

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.
The respondents must file with the answer and serve on the petitioner a copy of all
portions of the administrative record that are relevant to a determination of the issues
presented by the petition.
3. If the petitioner wishes to respond to the answer, he must do so by filing a traverse with
the court and serving it on the respondents within 30 days of his receipt of the answer.

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4. The petitioner’s application to proceed in forma pauperis is GRANTED. (ECF No. 3.)
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IT IS SO ORDERED.
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Dated: February 2, 2016
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______________________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER (No. 3:15-cv-06343-LB)

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