Johnson v. Gastelo

Filing 5

ORDER TO SHOW CAUSE; GRANTING 3 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS filed by Toney Alfonso Johnson. Habeas Answer or Dispositive Motion due by 1/5/2018. Signed by Judge William H. Alsup on 11/6/2017. The deputy clerk hereby certi fies that on 11/6/2017, a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing and to the Attorney General of the State of California. (afmS, COURT STAFF) (Filed on 11/6/2017)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TONEY ALFONSO JOHNSON, No. C 17-6070 WHA (PR) 9 Petitioner, 10 v. ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 11 JOSIE GASTELO, 12 (Dkt. No. 3) Respondent. 13 / 14 15 INTRODUCTION 16 Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 17 pursuant to 28 U.S.C. 2254 challenging his state court conviction. For the reasons discussed 18 below, respondent is ordered to show cause why the petition should not be granted. 19 STATEMENT 20 Petitioner was convicted in San Mateo County Superior Court of kindapping, robbery, 21 and firearms offenses. The trial court gave him a life sentence in state prison. His appeals to the 22 California Court of Appeals and the California Supreme Court were denied in 2016. His habeas 23 petitions in all three levels of the state courts were denied earlier this year. Thereafter, petitioner 24 filed the instant federal petition. 25 26 ANALYSIS A. STANDARD OF REVIEW 27 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 28 custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 1 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 2 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 3 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 4 court must “specify all the grounds for relief which are available to the petitioner ... and shall set 5 forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of the 6 Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 7 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 8 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 9 688, 689 (1st Cir. 1970)). 10 11 B. LEGAL CLAIMS Petitioner claims that his appellate counsel was ineffective in failing to claim on appeal 12 that there was insufficient evidence to support the guilty verdict on any of his convictions. When 13 liberally construed, this claim warrants a response. 14 15 CONCLUSION 1. The clerk shall mail a copy of this order and the petition with all attachments to the 16 respondent and the respondent's attorney, the Attorney General of the State of California. The 17 clerk shall also serve a copy of this order on the petitioner. 18 2. Respondent shall file with the court and serve on petitioner, within sixty-three (63) 19 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 20 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 21 granted based on the claim found cognizable herein. Respondent shall file with the answer and 22 serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are 23 relevant to a determination of the issues presented by the petition. 24 25 26 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 twenty-eight days of the date the answer is filed. 3. Respondent may file, within sixty-three (63) days, a motion to dismiss on procedural 27 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 28 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with 2 1 the court and serve on respondent an opposition or statement of non-opposition within twenty- 2 eight days of the date the motion is filed, and respondent shall file with the court and serve on 3 petitioner a reply within fourteen days of the date any opposition is filed. 4 4. Petitioner is reminded that all communications with the court must be served on 5 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 6 keep the court informed of any change of address and must comply with the court's orders in a 7 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 8 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 9 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 10 11 12 5. The application to proceed in forma pauperis is GRANTED in light of petitioner’s lack of funds. IT IS SO ORDERED. 13 Dated: November 14 6 , 2017. W ILLIAM A LSUP U NITED S TATES D ISTRICT J UDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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