Eastman v. Gastelo

Filing 5

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 9/12/2017.. Signed by Chief Magistrate Judge Joseph C. Spero on 7/10/17. (klhS, COURT STAFF) (Filed on 7/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS R. EASTMAN,
Petitioner,

Case No. 17-cv-02158-JCS (PR)

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v.

ORDER TO SHOW CAUSE

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JOSIE GASTELO,
Respondent.

United States District Court
Northern District of California

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INTRODUCTION

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Petitioner, who consented to magistrate judge jurisdiction (Pet. at 7), seeks federal

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habeas relief under 28 U.S.C. § 2254 from his state convictions. The petition for such

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relief is here for review under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section

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2254 Cases.

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In response to the petition, respondent shall file an answer or a dispositive motion
on or before September 12, 2017.
BACKGROUND
According to the petition, in 1982, a Contra Costa Superior Court jury convicted

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petitioner of second degree murder and the use of a deadly weapon. Consequent to these

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convictions, he was sentenced to 15 years to life in state prison.

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

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

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a). A district court considering an application for a writ of habeas corpus shall

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“award the writ or issue an order directing the respondent to show cause why the writ

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should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate

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only where the allegations in the petition are vague or conclusory, palpably incredible, or

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patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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As grounds for federal habeas relief, petitioner claims that (1) the statutes under

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which he was convicted and sentenced are now “void for vagueness” in light of Johnson v.

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United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016);

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(2) there was insufficient evidence that he possessed the requisite state of mind to commit
second degree murder; and (3) the trial court made an erroneous ruling and failed to

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United States District Court
Northern District of California

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properly instruct the jury. When liberally construed, these claims are cognizable on

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federal habeas review.

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While the first claim may be timely, the second and third are likely untimely

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under AEDPA. Respondent is directed to consider whether the claims are untimely.

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If she concludes that they are, she may file a motion to dismiss on such grounds,

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though she is not required to do so.

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CONCLUSION

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

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thereto, and a Magistrate Judge jurisdiction consent or declination to consent form on

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respondent and respondent’s counsel, the Attorney General for 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. On or before September 12, 2017, respondent shall file with the Court and serve

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on petitioner 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

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based on petitioner’s cognizable claims. Respondent shall file with the answer and serve

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on petitioner a copy of all portions of the state trial record that previously have been

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transcribed and that are relevant to a determination of the issues presented by the petition.

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3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse
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with the Court and serving it on respondent’s counsel within thirty (30) days of the date the

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answer is filed.

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4. In lieu of an answer, respondent may file, on or before September 12, 2017, a

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motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to

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Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the Court and serve on respondent an opposition or statement of

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non-opposition within thirty (30) days of the date the motion is filed, and respondent shall

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file with the Court and serve on petitioner a reply within fifteen (15) days of the date any

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opposition is filed.

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United States District Court
Northern District of California

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5. Petitioner is reminded that all communications with the Court must be served on
respondent by mailing a true copy of the document to respondent’s counsel.
6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the

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Court and respondent informed of any change of address and must comply with the

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Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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7. 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.

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8. The filing fee has been paid.

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IT IS SO ORDERED.

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Dated: July 10, 2017
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THOMAS R. EASTMAN,

Case No. 17-cv-02158-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JOSIE GASTELO,
Defendant.

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.
That on July 10, 2017, 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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Thomas R. Eastman ID: C-46268
California Men's Colony East
P.O. Box 8101
San Luis Obispo, CA 93409

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Dated: July 10, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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