Jones v. Seibel

Filing 9

PARTIAL DISMISSAL ORDER; ORDER TO SHOW CAUSE. Signed by Magistrate Judge Maria-Elena James on 3/29/2017. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 3/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOE DENNIS JONES,
Petitioner,

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KIMBERLY A. SEIBEL, Warden,
Respondent.

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United States District Court
Northern District of California

PARTIAL DISMISSAL ORDER;
ORDER TO SHOW CAUSE

v.

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Case No. 16-cv-06193-MEJ (PR)

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Petitioner, a prisoner currently incarcerated at Chuckawalla Valley State Prison, has filed a

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pro se amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

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conviction from Monterey County Superior Court. For the reasons state below, the court

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dismisses one claim and orders respondent to show cause why a writ of habeas corpus should not

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be granted as to the others.
BACKGROUND

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According to the petition, in early 2011, Petitioner was convicted of one count of forcible

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rape and one count of forcible oral copulation. He was sentenced to sixteen years in state prison.

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On December 17, 2013, the California Court of Appeal affirmed his conviction. His petition for

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review was denied by the California Supreme Court. The United States Supreme Court denied

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certiorari. The instant action was filed on October 26, 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); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).
A district court shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

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Petitioner’s Claims
As grounds for federal habeas relief, Petitioner claims that: (1) both the trial court and state

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appellate court misapplied state law on Petitioner’s mistake of fact defense regarding consent;

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(2) trial counsel rendered ineffective assistance by failing to object to the above error; and (3)

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there was insufficient evidence of force or fear to support Petitioner’s conviction for forcible oral

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copulation.

United States District Court
Northern District of California

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Petitioner’s first claim is not cognizable because it does not allege a violation of federal

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law. A writ of habeas corpus is available under 28 U.S.C. § 2254(a) “only on the basis of some

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transgression of federal law binding on the state courts.” Middleton v. Cupp, 768 F.2d 1083, 1085

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(9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). It is unavailable for violations of

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state law or for alleged error in the interpretation or application of state law. Estelle v. McGuire,

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502 U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119. Accordingly, Claim 1 is DISMISSED without

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leave to amend. Liberally construed, Petitioner’s remaining claims are sufficient to require a

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response. The Court orders Respondent to show cause why the amended petition should not be

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granted as to Claims 2 and 3.
CONCLUSION

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1.

The Clerk shall serve by mail a copy of this order and the amended petition and all

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attachments thereto (Docket No. 8), as well as a magistrate judge jurisdiction consent form, upon

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

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The 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

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

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

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

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

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that are 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.
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Respondent may file, within sixty (60) days, a motion to dismiss on procedural

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

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United States District Court
Northern District of California

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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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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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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: March 29, 2017

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MARIA-ELENA JAMES
United States Magistrate Judge