Wilkins v. Macomber

Filing 9

ORDER FOR AMENDMENT TO PETITION. Signed by Judge Susan Illston on 05/27/2016. (tmiS, COURT STAFF) (Filed on 5/27/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,

Case No. 16-cv-00221-SI

Plaintiff,
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v.

ORDER FOR AMENDMENT TO
PETITION

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JEFF MACOMBER,

Re: Dkt. No. 1

Defendant.

United States District Court
Northern District of California

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Keenan G. Wilkins, a/k/a Nerrah Brown, filed this pro se action for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28

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U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District

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Courts.

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BACKGROUND

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The petition, attachments thereto and the California Court of Appeal’s opinion provide the

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following information. Keenan Wilkins had a lengthy pretrial detention, a significant portion of

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which was due to issues related to his mental competency. Following a jury trial, Wilkins was

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convicted in Alameda County Superior Court of seven counts of second degree robbery, seven

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counts of false imprisonment by violence, and making criminal threats. He also was found to have

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suffered prior convictions and prior prison terms. In December 2012, he was sentenced to 100

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years to life in prison.

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Wilkins appealed. In 2015, the California Court of Appeal affirmed the judgment of

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conviction and the California Supreme Court denied the petition for review. Wilkins also filed

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several unsuccessful petitions for writ of habeas corpus in state courts. He then filed this action.

DISCUSSION

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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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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).

United States District Court
Northern District of California

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In ordinary civil proceedings, the governing rule, Rule 8 of the Federal Rules of Civil

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Procedure, requires only “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 2(c) of the Rules Governing Habeas Corpus cases

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requires a more detailed statement. The habeas rule instructs the petitioner to “specify all the

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grounds for relief available to [him or her]” and to “state the facts supporting each ground.” Rule

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2(c), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. §

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2254; see also Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990) (habeas petitioner must

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state his claims with sufficient specificity). A prime purpose of Rule 2(c)’s demand that habeas

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petitioners plead with particularity is to assist the district court in determining whether the state

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should be ordered to show cause why the writ should not be granted. Mayle v. Felix, 545 U.S.

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644, 655-56 (2005) (citing 28 U.S.C. § 2253). Conclusory allegations in a habeas petition fail to

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state a claim and do not suffice to shift the burden to the state to answer an order to show cause.

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See Allard v. Nelson, 423 F.2d 1216, 1217 (9th Cir. 1970).

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Wilkins filed a 130+ page petition for writ of habeas corpus in which he alleges 23 claims.

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Notwithstanding its length, there is a lot of information missing from the petition. Although the

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court often looks to appellate briefs to fill in some of the missing information, that is not possible

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for most of Wilkins’ claims because only three issues were raised in the appeal in which appointed

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counsel prepared the briefs. Wilkins will be required to file an amendment to his petition to
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address some of the more significant problems.

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First, Wilkins labels numerous claims (i.e., Claims 1, 3-6, 8-15, 17, 19, and 20) as claims

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for violations of his rights to due process and equal protection. He does not, however, allege any

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facts suggestive of an equal protection violation in any of those claims. His petition thus fails to

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adequately “state the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254

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Cases in the United States District Court. Due to the inadequacy of the allegations, the court

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cannot determine that any response should be required to the equal protection claims.
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

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‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

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direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne

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United States District Court
Northern District of California

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Living Center, 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982));

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Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (evidence of different

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treatment of unlike groups does not support an equal protection claim). The Equal Protection

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Clause “does not ‘assure uniformity of judicial decisions . . . (or) immunity from judicial error. . .

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.’

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constitutional question.” Beck v. Washington, 369 U.S. 541, 554–55 (1962) (quoting Milwaukee

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Electric Ry. & Light Co. v. Wisconsin ex rel. Milwaukee, 252 U.S. 100, 106 (1920)).

Were it otherwise, every alleged misapplication of state law would constitute a federal

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Wilkins must file an amendment to the petition to cure the deficiencies in his equal

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protection claims. The amendment must include nonconclusory allegations of facts showing how

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his right to equal protection was violated. See Reeb v. Thompson, 636 F.3d 1224, 1228 n.4 (9th

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Cir. 2011) (allegation that BOP erred in habeas petitioner’s case was insufficient to state an equal

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protection claim because he did “not present any facts demonstrating that he was treated

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differently from others who were similarly situated to him”). For each of the fifteen claims in

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which he asserts an equal protection violation, he must separately describe the facts showing the

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alleged equal protection violation.

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Second, Wilkins alleges in Claim 7 that his right to be free from double jeopardy was

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violated, but his jumbled allegations do not allow the reader to understand the nature of the alleged

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double jeopardy violation.

Some allegations indicate that the jury deadlocked in a trial to
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determine Wilkins’ competence to stand trial, rather than in a trial to determine his guilt. In his

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amendment to the petition, Wilkins must more clearly describe the alleged double jeopardy

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problem. He must describe whether the first trial was to determine competence or to determine

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guilt of the charges and must allege the result of that trial. He also must describe whether the

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second trial in his double jeopardy claim was to determine competence or to determine guilt of the

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charges. If he contends that the Double Jeopardy Clause precludes a trial on guilt after a mistrial

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on a trial to determine competence to stand trial, he should provide a case that stands for that

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specific proposition.
Third, Wilkins alleges in Claim 16 that his Confrontation Clause rights were violated

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because he was “convicted for crimes in which no victim was produced to confront.” Docket No.

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United States District Court
Northern District of California

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1-16 at 1. The Confrontation Clause provides that in criminal cases the accused has the right to

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“be confronted with the witnesses against him.” U.S. Const. amend. VI. The ultimate goal of the

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Confrontation Clause is to ensure reliability of evidence, but it is a procedural rather than a

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substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61 (2004). The Confrontation

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Clause does not require that evidence be reliable, but instead that reliability be assessed in a

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particular manner: by testing in the crucible of cross-examination. Id. In his petition, Wilkins

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names several victims who did not testify at trial, but he does not allege that any testimonial

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statements from those witnesses were used at his trial and does not describe the circumstances

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under which those statements were obtained. He has identified no case that requires that a

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conviction cannot occur but upon a victim’s testimony; indeed, such a case would be unexpected

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as victim testimony is not possible in some crimes, such as homicides. In his amendment, For his

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Confrontation Clause claim, Wilkins must explain in his amendment to the petition what

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statements each victim made, and explain how evidence of those statements was admitted at trial

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to show that he had a right to confront each such victim.

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Fourth, Wilkins alleges in Claim 19 that he “was punished for exercising his constitutional

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right to a jury trial with an excessively harsh sentence.” Docket No. 1-19 at 1. He appears to

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contend that there is a categorical rule against a defendant receiving a greater sentence after trial

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than that offered to him during plea negotiations, but has not identified a case standing for that
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proposition. In his amendment, Wilkins should allege whether (and, if so, when) the judge stated

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that he was imposing a harsher sentence simply because Wilkins had gone to trial. Wilkins also

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alleges that his plea deal was for a shorter sentence, but he does not identify the crimes as to which

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he would have had to plead guilty/no contest in order to receive that shorter sentence. In his

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amendment, Wilkins should allege the crimes to which he would have had to plead guilty/no

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contest, and the prior convictions he would have had to admit under the plea agreement the

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prosecutor offered and the plea agreement the judge later proposed.
Fifth, Wilkins alleges in Claim 20 that his sentence amounts to cruel and unusual

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punishment because it is a de facto life sentence without the possibility of parole in that he will not

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become eligible for parole before the end of his life expectancy. He points out that he has only

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United States District Court
Northern District of California

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been to prison once before, for a “’non-violent’ (serious) robbery occurring in 1996.” Docket No.

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1-22 at 2. (One of his exhibits shows that he pled guilty to four counts of robbery in 1999.)

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The Eighth Amendment’s “Cruel and Unusual Punishments Clause prohibits the

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imposition of inherently barbaric punishments under all circumstances.” Graham v. Florida, 560

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U.S. 48, 59 (2010). “For the most part, however, the [Supreme] Court's precedents consider

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punishments challenged not as inherently barbaric but as disproportionate to the crime.” Id. The

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Eighth Amendment contains a “narrow” proportionality principle – one that “does not require

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strict proportionality between crime and sentence,” and forbids only “extreme sentences that are

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'grossly disproportionate' to the crime.” Id. at 59-60. “[O]utside the context of capital punishment,

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successful challenges to the proportionality of particular sentences [will be] exceedingly rare.”

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Solem v. Helm, 463 U.S. 277, 289-90 (1983). Only in that rare case where a comparison of the

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gravity of the offense and the severity of the sentence leads to an inference of gross

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disproportionality does the court compare a petitioner's sentence with sentences for other

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offenders in the jurisdiction, and for the same crime in other jurisdictions, to determine whether it

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is cruel and unusual punishment. Graham, 560 U.S. at 60.

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Lengthy sentences for non-homicide offenses have been upheld in numerous cases by the

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Supreme Court and Ninth Circuit. See e.g., Ewing v. California, 538 U.S. 11, 29-31 (2003)

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(upholding sentence of 25-years-to-life for recidivist convicted most recently of grand theft);
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Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (upholding sentence of two consecutive terms of 25-

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years-to-life for recidivist convicted most recently of two counts of petty theft with a prior

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conviction); Harmelin, 501 U.S. at 996 (upholding sentence of life without possibility of parole

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for first offense of possession of 672 grams of cocaine); Nunes v. Ramirez-Palmer, 485 F.3d 432,

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439 (9th Cir. 2007) (upholding sentence of 25-years-to-life for the underlying offense of petty

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theft with a prior conviction after finding petitioner's criminal history was longer, more prolific,

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and more violent than the petitioner's in Andrade, who suffered a harsher sentence); Cacoperdo v.

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Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994) (sentence of ineligibility for parole for 40 years

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not grossly disproportionate when compared with gravity of sexual molestation offenses).

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Wilkins does not allege facts suggesting that his sentence is disproportionate to the crimes

United States District Court
Northern District of California

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of which he was convicted with enhancements.

Indeed, the petition contains almost no

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information about criminal episode(s) that led to his conviction for seven counts of second degree

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robbery, seven counts of false imprisonment by violence, and making criminal threats. If Wilkins

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wishes to pursue his Eighth Amendment claim, he must in his amendment to his petition allege

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nonconclusory facts that would suggest a comparison of the gravity of his offenses and severity of

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his sentence “leads to an inference of gross disproportionality.” Graham, 560 U.S. at 60.

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CONCLUSION

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For the foregoing reasons, Wilkins must file an amendment to his petition curing the

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several deficiencies discussed in this order. The amendment must be filed no later than June 30,

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2016, and should be clearly marked on the first page as an “Amendment To Petition.” The

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amendment may not exceed twenty pages in length. Failure to comply with the directions in this

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order will result in the dismissal of the deficient claims without further leave to amend.

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Because the document he will file will be an amendment to the petition, rather than an

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amended petition, the document will not supersede the original petition and instead will be read in

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conjunction with it. Wilkins therefore does not need to repeat all the claims asserted in the

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original petition, and only needs to provide the information necessary to cure the deficiencies

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discussed in this order. Once Wilkins files the amendment, the court will review the petition, as
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amended by the amendment, to determine whether a response from respondent is warranted.
IT IS SO ORDERED.
Dated: 05/27/2016
______________________________________
SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,

Case No. 16-cv-00221-SI

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JEFF MACOMBER,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on May 27, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Keenan G. Wilkins ID: AN2387
CSP-Sacramento
P.O. Box 290066
Represa, CA 95671

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Dated: May 27, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Tana Ingle, Deputy Clerk to the
Honorable SUSAN ILLSTON

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