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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TONEY ALFONSO JOHNSON,

No. C 17-6070 WHA (PR)

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Petitioner,
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v.

ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS

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JOSIE GASTELO,
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(Dkt. No. 3)
Respondent.

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INTRODUCTION

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Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. 2254 challenging his state court conviction. For the reasons discussed

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below, respondent is ordered to show cause why the petition should not be granted.

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STATEMENT

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Petitioner was convicted in San Mateo County Superior Court of kindapping, robbery,

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and firearms offenses. The trial court gave him a life sentence in state prison. His appeals to the

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California Court of Appeals and the California Supreme Court were denied in 2016. His habeas

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petitions in all three levels of the state courts were denied earlier this year. Thereafter, petitioner

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filed the instant federal petition.

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ANALYSIS
A.

STANDARD OF REVIEW

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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
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). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall set

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forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of the

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Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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B.

LEGAL CLAIMS
Petitioner claims that his appellate counsel was ineffective in failing to claim on appeal

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that there was insufficient evidence to support the guilty verdict on any of his convictions. When

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liberally construed, this claim warrants a response.

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CONCLUSION
1. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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clerk shall also serve a copy of this order on the petitioner.

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2. Respondent shall file with the court and serve on petitioner, within sixty-three (63)

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days 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

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granted based on the claim found cognizable herein. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are

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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 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

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grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with
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the court and serve on respondent an opposition or statement of non-opposition within twenty-

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eight days of the date the motion is filed, and respondent shall file with the court and serve on

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petitioner a reply within fourteen 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. The application to proceed in forma pauperis is GRANTED in light of petitioner’s lack
of funds.
IT IS SO ORDERED.

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Dated: November
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, 2017.

W ILLIAM A LSUP
U NITED S TATES D ISTRICT J UDGE

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