Johnson V. Tampkins

Filing 7

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 8/14/2017. Signed by Judge Joseph C. Spero on May 10, 2017. (jcslc1S, COURT STAFF) (Filed on 5/10/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
MICHAEL JOHNSON,

7

Case No. 17-cv-00385-JCS

Plaintiff,
8
v.

ORDER TO SHOW CAUSE

9
CYNTHIA Y. TAMPKINS,

10

Defendant.

United States District Court
Northern District of California

11
12
13

I.

INTRODUCTION
Petitioner Michael Johnson seeks federal habeas relief under 28 U.S.C. § 2254 from his

14
15

state conviction. The petition for such relief is here for review under 28 U.S.C. § 2243 and Rule 4

16

of the Rules Governing Section 2254 Cases. Respondent Cynthia Tamkins shall file a response to

17

the petition on or before August 14, 2017.1

18

II.

BACKGROUND
On July 16, 2014, the Superior Court of California, County of Napa, sentenced Johnson to

19
20

twelve years imprisonment after he was found guilty of one count of forcible rape (Cal. Penal

21

Code § 261, subd. (a)(2)), one count of misdemeanor battery (Cal. Penal Code § 242) as a lesser

22

included offense; two counts of forcible penetration (Cal. Penal Code § 289, subd. (a)(1)(A)) and

23

one count of false imprisonment (Cal. Penal Code § 236). He appealed his conviction to the

24

California Court of Appeal, First Appellate District, Division Five. The Court of Appeal affirmed

25

the superior court’s judgment on August 25, 2015. The California Supreme Court denied review

26

on October 28, 2015. The instant petition was filed on January 25, 2017, within a year of the date

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

on which the 90-day statutory period for filing a petition for writ of certiorari from the United

2

States Supreme Court expired.
Johnson is presently in custody at the California Rehabilitation Center, in Norco,

3
4

California.

5

III.

ANALYSIS
This Court may entertain a petition for writ of habeas corpus on behalf of “a person in

6
7

custody pursuant to the judgment of a State court only on the ground that he is in custody in

8

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A

9

district court considering an application for a writ of habeas corpus shall “award the writ or issue
an order directing the respondent to show cause why the writ should not be granted, unless it

11
United States District Court
Northern District of California

10

appears from the application that the applicant or person detained is not entitled thereto.” 28

12

U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

13

vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez,

14

908 F.2d 490, 491 (9th Cir. 1990).
As grounds for federal habeas relief, Johnson asserts that the trial court violated his right to

15
16

Due Process under the Fourteenth Amendment and his right to a trial by jury by instructing the

17

jury of what he contends is a mandatory, conclusive presumption that the existence of a dating

18

relationship between petitioner and the complainant was not sufficient to show consent. Petitioner

19

contends the instruction unconstitutionally lowered the prosecution’s burden of proof and

20

constitutes a form of error under Sandstrom v. Montana, 442 U.S. 510 (1979). When liberally

21

construed, these claims are cognizable in a federal habeas corpus action.

22

IV.

23

CONCLUSION
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a

24

magistrate judge jurisdiction consent or declination form on Respondent and Respondent’s

25

counsel, the Attorney General for the State of California.

26

2. No later than August 14, 2017, Respondent shall file an answer conforming in all

27

respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

28

habeas corpus should not be granted based on Johnson’s claims. Respondent shall file with the
2

1

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

2

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

3
4
5

3. If Johnson 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.
4. In lieu of an answer, Respondent may file, no later than August 14, 2017, a motion to

6

dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of the

7

Rules Governing Section 2254 Cases. If Respondent files such a motion, Johnson shall file an

8

opposition or statement of non-opposition within thirty (30) days of the date the motion is filed,

9

and Respondent shall file a reply within fifteen (15) days of the date any opposition is filed.
5. Upon a showing of good cause, requests for a reasonable extension of time will be granted

11
United States District Court
Northern District of California

10

provided they are filed on or before the deadline they seek to extend.

12
13

IT IS SO ORDERED.
Dated: May 10, 2017

14
15
16

______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

17
18
19
20
21

22
23
24
25
26
27
28
3