Johnson v. Arnold

Filing 5

ORDER TO SHOW CAUSE. Petitioner's 3 MOTION for Leave to Proceed in forma pauperis is granted. Habeas Answer or Dispositive Motion due by 7/3/2017. Signed by Magistrate Judge Sallie Kim on 5/4/2017. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 5/4/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 ADEAJAI C. JOHNSON, AP7366, United States District Court Northern District of California Petitioner, 12 ORDER TO SHOW CAUSE v. 13 14 Case No. 17-1699 SK (PR) (ECF No. 3) ERIC ARNOLD, Warden, Respondent. 15 16 17 Petitioner, a state prisoner incarcerated at California State Prison, Solano, has filed 18 a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 19 conviction from Contra Costa County Superior Court. He also seeks leave to proceed in 20 forma pauperis (IFP) under 28 U.S.C. § 1915. 21 22 23 The petition is properly before the undersigned for initial review because petitioner has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). BACKGROUND 24 Petitioner was convicted by a jury of second degree murder with multiple firearm 25 enhancements. On June 21, 2013, he was sentenced to forty years to life in state prison. 26 Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the 27 Supreme Court of California, which on February 24, 2016 denied review of a petition 28 allegedly raising the same claims raised here. DISCUSSION 1 2 A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf of a person 3 4 in custody pursuant to the judgment of a State court only on the ground that he is in 5 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 6 § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 7 8 why the writ should not be granted, unless it appears from the application that the applicant 9 or person detained is not entitled thereto.” Id. § 2243. 10 United States District Court Northern District of California 11 B. Claims Petitioner seeks federal habeas corpus relief on the grounds that the trial court 12 committed prejudicial error when it: (1) allowed a detective to testify about his opinion of 13 a witness’s truthfulness, (2) improperly instructed the jury on unreasonable self-defense, 14 (3) denied a motion for a new trial based on ineffective of trial counsel, and (4) denied a 15 motion for mistrial based on jurors seeing him in handcuffs. Liberally construed, the 16 claims appear cognizable under § 2254 and merit an answer from respondent. See Zichko 17 v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions 18 for writs of habeas corpus liberally). CONCLUSION 19 20 For the foregoing reasons and for good cause shown, 21 1. Petitioner’s request to proceed IFP (ECF No. 3) is GRANTED. 22 2. The clerk shall serve (1) a copy of this order, (2) the petition and all 23 attachments thereto, and (3) a notice of assignment of prisoner case to a United States 24 magistrate judge and accompanying magistrate judge jurisdiction consent or declination to 25 consent form (requesting that respondent consent or decline to consent within 28 days of 26 receipt of service), on respondent and respondent’s attorney, the Attorney General of the 27 State of California. The clerk also shall serve a copy of this order on petitioner. 28 3. Respondent shall file with the court and serve on petitioner, within 60 days 2 1 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 2 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 3 granted. Respondent shall file with the answer and serve on petitioner a copy of all 4 portions of the state trial record that have been transcribed previously and that are relevant 5 to a determination of the issues presented by the petition. 6 7 8 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 30 days of his receipt of the answer. 4. Respondent may file 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 Governing 10 Section 2254 Cases. If respondent files such a motion, petitioner must serve and file an 11 United States District Court Northern District of California 9 opposition or statement of non-opposition not more than 28 days after the motion is served 12 and filed, and respondent must serve and file a reply to an opposition not more than 14 13 days after the opposition is served and filed. 14 5. Petitioner is reminded that all communications with the court must be served 15 on respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 16 must also keep the court and all parties informed of any change of address. 17 18 IT IS SO ORDERED. Dated: May 4, 2017 _________________________ SALLIE KIM United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 3

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