Jones v. Davey

Filing 7

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 2/27/2017. Signed by Judge Haywood S. Gilliam, Jr. on 12/29/2016. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 12/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAMON L. JONES,
Petitioner,

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DAVE DAVEY, Warden,
Respondent.

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United States District Court
Northern District of California

ORDER TO SHOW CAUSE

v.

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Case No. 16-cv-05239-HSG (PR)

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Petitioner, a state prisoner incarcerated at Corcoran State Prison, has filed a pro se petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee.
BACKGROUND

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According to the petition, in 2012, an Alameda County Superior Court jury found

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Petitioner guilty of first degree murder. He was sentenced to 50 years to life in state prison. The

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California Court of Appeal affirmed, and the California Supreme Court denied review. Petitioner

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filed unsuccessful habeas petitions in the state superior court, the California Court of Appeal, and

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the California Supreme Court. The instant action was filed on September 13, 2016.
DISCUSSION

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A.

Standard of Review
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).

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B.

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Claims
As grounds for federal habeas relief, Petitioner claims: (1) trial court error in instructing

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the jury with CALJIC 5.55 and a portion of CALJIC 5.17 stating that imperfect self-defense is not

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available if the defendant created the circumstances that legally justified his adversary’s use of

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force; (2) trial court error in the ordering of the self-defense instructions; (3) insufficient evidence

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to support a first degree murder conviction; (4) ineffective assistance of trial counsel on multiple
grounds; and (5) ineffective assistance of appellate counsel on multiple grounds. Liberally

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United States District Court
Northern District of California

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construed, the claims appear arguably cognizable under § 2254 and merit an answer from

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Respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must

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construe pro se petitions for writs of habeas corpus liberally).
CONCLUSION

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For the foregoing reasons,

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1. The Clerk shall mail a copy of this order and the petition with all attachments to the

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Respondent and the Respondent’s attorney, the Attorney General of the State of California. The

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Clerk shall also serve a copy of this order on Petitioner.

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2. Respondent shall file with the Court and serve on Petitioner, within sixty (60) days of

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

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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the claims found cognizable herein. Respondent shall file with the answer and serve on Petitioner

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a copy of all portions of the state trial record that have been transcribed previously and that are

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relevant to a determination of the issues presented by the petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
Court and serving it on Respondent within thirty (30) days of the date the answer is filed.
3. Respondent may file, within sixty (60) days, a motion to dismiss on procedural grounds
in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
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Governing Section 2254 Cases. If Respondent files such a motion, petitioner shall file with the

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Court and serve on Respondent an opposition or statement of non-opposition within twenty-eight

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(28) days of the date the motion is filed, and Respondent shall file with the Court and serve on

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Petitioner a reply within fourteen (14) days of the date any opposition is filed.

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4. Petitioner is reminded that all communications with the Court must be served on

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Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must

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keep the Court informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

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United States District Court
Northern District of California

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
5. Upon a showing of good cause, requests for a reasonable extension of time will be
granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
Dated: 12/29/2016

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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