Ferguson v. Wong

Filing 6

ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING APPOINTMENT OF COUNSEL. Signed by Magistrate Judge Jacqueline Scott Corley on 1/25/2018. (ahm, COURT STAFF) (Filed on 1/25/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEON E. FERGUSON,

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Plaintiff,

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v.

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TOMMY WONG,

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Defendant.

United States District Court
Northern District of California

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Case No.17-cv-06904-JSC

ORDER TO SHOW CAUSE;
GRANTING LEAVE TO
PROCEED IN FORMA
PAUPERIS; DENYING
APPOINTMENT OF COUNSEL
Re: Dkt. Nos. 2, 3

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INTRODUCTION

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Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ

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of habeas corpus under 28 U.S.C. § 2254 challenging his convictions and sentence in state court.1

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Petitioner’s application for leave to proceed in forma pauperis is GRANTED due to Petitioner’s

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lack of funds. Because the petition states cognizable grounds for federal habeas relief, a response

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from Respondent is warranted.

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BACKGROUND

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In 2015, Petitioner was convicted in Contra Costa County Superior Court of multiple

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counts of robbery, kidnapping, sexual battery, and firearms possession based upon a “home

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invasion” robbery and the robbery of a jewelry store the next day. He was sentenced to a term of

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46 years to life in state prison. On appeal, the California Court of Appeal affirmed in part and

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Petitioner has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). (ECF No. 1 at 6.)

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reversed in part the convictions and sentence, and the California Supreme Court denied review.
Petitioner then filed the instant federal petition.
DISCUSSION

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I.

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

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). It

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shall “award the writ or issue an order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the applicant or person detained is not

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United States District Court
Northern District of California

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entitled thereto.” Id. § 2243.

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II.

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Legal Claims
In his first claim, Petitioner argues that his convictions for kidnapping violated his right to

due process because they were not supported by sufficient evidence. He also argues that the

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sentencing provision for kidnapping codified in California Penal Code Section 209(b) is
unconstitutionally vague and violates due process under Johnson v. United States, 535 S.Ct. 2551

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(2015). In his second claim, he argues that the trial court violated his right to due process by

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excluding evidence offered by the defense expert on eyewitness testimony. These claims, when

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liberally construed, present cognizable bases for federal habeas relief.

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CONCLUSION

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For the foregoing reasons and for good cause shown,
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1. The Clerk shall serve a Magistrate Judge jurisdiction consent form, a copy of this

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Order, and the petition, and all attachments thereto, on Respondent and Respondent’s attorney, the

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Attorney General of the State of California. The Clerk also shall serve a copy of this Order on

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Petitioner.

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2. Respondent shall complete and file the Magistrate Judge jurisdiction consent form in
accordance with the deadline provided on the form.
3. Respondent shall also file with the Court and serve on Petitioner, within ninety-one (91)

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days of the date this Order is issued, 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 granted.

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Respondent shall file with the answer and serve on Petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the
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issues presented by the petition. If Petitioner wishes to respond to the answer, he shall do so by
filing a traverse (a reply) with the Court and serving it on Respondent within twenty-eight (28)

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United States District Court
Northern District of California

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days of the date the answer is filed.

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4. Respondent may, within ninety-one (91) days of the date this Order is issued, 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 Section 2254 Cases. If Respondent files such

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a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement
of non-opposition within twenty-eight (28) days of the date the motion is filed, and Respondent

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shall file with the Court and serve on Petitioner a reply within fourteen (14) days of the date any

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opposition is filed.

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5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court
informed of any change of address by filing a separate paper captioned “Notice of Change of
Address.” He must comply with the Court’s orders in a timely fashion. Failure to do so may

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result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b).

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6. Leave to proceed in forma pauperis is GRANTED due to Petitioner’s lack of funds.

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Petitioner’s request for appointment of counsel is DENIED because there are no extraordinary

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circumstances warranting such appointment, Petitioner has proven able to present his claims, and
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there is no need for an evidentiary hearing at this time. Should these circumstances change and

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the Court finds that appointment of counsel for Petitioner is warranted, the Court will act on its

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own to appoint counsel for Petitioner. Petitioner need not continue to request counsel.

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IT IS SO ORDERED.
Dated: January 25, 2018

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEON E. FERGUSON,

Case No. 17-cv-06904-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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TOMMY WONG,
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 January 25, 2018, 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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Leon E. Ferguson ID: AW2634
Substance Abuse Treatment Facility and State Prison
900 Quebec Avenue
Corcoran, CA 93212

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Dated: January 25, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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