West v. Hatton et al

Filing 7

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR RESPONDENT TO SHOW CAUSE re 6 MOTION for Leave to Proceed in forma pauperis filed by Barton Farris West, 2 MOTION for Leave to Proceed in forma pauperis filed by Barton Farris West. Dispositive Motion due by 6/12/2017. Habeas Answer due by 6/12/2017. Signed by Judge Phyllis J. Hamilton on 4/17/17. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 4/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BARTON FARRIS WEST,
Petitioner,

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v.
SHAWN HATTON, et al.,
Respondent.

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United States District Court
Northern District of California

Case No. 17-cv-01440-PJH
ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS AND
FOR RESPONDENT TO SHOW CAUSE
Re: Dkt. Nos. 2, 6

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

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pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Lake County which is in this

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district, so venue is proper here. See 28 U.S.C. § 2241(d).
BACKGROUND

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Petitioner states his case involves an incident where he was driving while

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intoxicated and was in a car accident where an individual was killed. Petition at 41.

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Petitioner pleaded nolo contedere to murder and he states that he had a prior serious

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felony. Id. He was sentenced on April 25, 2011, to fifteen years to life plus five years.

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Petition at 1. He did not appeal his case but filed a habeas petition in the California

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Supreme Court on January 11, 2017, that was denied on February 15, 2017. Petition at

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2-3, 10, 12
DISCUSSION

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STANDARD OF REVIEW
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); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)).

United States District Court
Northern District of California

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LEGAL CLAIMS

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Petitioner’s sole ground for federal habeas relief asserts that the California second

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degree felony murder law is constitutionally invalid pursuant to Johnson v. United States,
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135 S.Ct. 2551 (2015). Johnson was found to be retroactive on collateral review in
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Welch v. United States, 136 S.Ct. 1257 (2016). Liberally construed, this claim is
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sufficient to require a response.1

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CONCLUSION
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1.

Petitioner’s motion for leave to proceed in forma pauperis (Docket Nos. 2,

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6) is GRANTED.
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2.
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The clerk shall serve by regular mail a copy of this order and the petition

and all attachments thereto on respondent and respondent’s attorney, the Attorney

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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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While Johnson involved the federal Armed Career Criminal Act, there is at least a
colorable argument that the rational applies to California’s law. See Renteria v.
Asunsion, 2016 WL 7336558, at *3 (C.D. Cal. 2016); Why California’s Second-Degree
Felony-Murder Rule is Now Void for Vagueness, 43 Hastings Const. L.Q. 1 (Fall 2015).
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Respondent shall file with the court and serve on petitioner, within fifty-six

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(56) days of the issuance of this order, an answer conforming in all respects to Rule 5 of

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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus

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should not be granted. Respondent shall file with the answer and serve on petitioner a

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copy of all portions of the state trial record that have been transcribed previously and that

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are 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

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with the court and serving it on respondent within twenty-eight (28) days of his receipt of

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the answer.
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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 Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56)
days from the date this order is entered. If a motion is filed, petitioner shall file with the
court and serve on respondent an opposition or statement of non-opposition within
twenty-eight (28) days of receipt of the motion, and respondent shall file with the court
and serve on petitioner a reply within fourteen (14) days of receipt of any opposition.

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United States District Court
Northern District of California

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5.
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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.

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Petitioner must keep the court informed of any change of address and must comply with
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the 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). See
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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas
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cases).
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IT IS SO ORDERED.
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Dated: April 17, 2017
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PHYLLIS J. HAMILTON
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BARTON FARRIS WEST,

Case No. 17-cv-01440-PJH

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SHAWN HATTON, et al.,
Defendants.

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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.

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That on April 17, 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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Barton Farris West
Correctional Training Facility (CTF)
P.O. Box 689
Soledad, CA 93960-0689

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Dated: April 17, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Kelly Collins, Deputy Clerk to the
Honorable PHYLLIS J. HAMILTON
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