Walker v. People of the State of California et al

Filing 22

ORDER TO SHOW CAUSE DIRECTING CLERK TO REPLACE PROPER RESPONDENT; DISMISSING MOTION TO COMPEL AS MOOT. The Clerk of the Court shall replace People of the State of California and Correctional Captain B. M. Cash with Warden W. G. Sullivan as Respondent in this action. The Clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a cop y of this order on Petitioner. Petitioner has been granted leave to proceed in forma pauperis, (see Docket No. 21 ). Accordingly, Petitioner's request to compel the prison to complete his application, (Docket No. 20 ), is DISMISSED as moot. Signed by Judge Edward J. Davila on 2/1/2012. (ecg, COURT STAFF) (Filed on 2/3/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JEFFERY WALKER,
Petitioner,

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vs.

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W. G. SULLIVAN, Warden,
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Respondent.
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No. C 11-03177 EJD (PR)
ORDER TO SHOW CAUSE;
DIRECTING CLERK TO REPLACE
PROPER RESPONDENT;
DISMISSING MOTION TO COMPEL
AS MOOT

(Docket No. 20)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction.

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Before the Court could review the petition, Petitioner filed an amended petition on

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November 28, 2011, which is the operative petition in this action.1 (See Docket No.

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11.) Petitioner has been granted leave to proceed in forma pauperis. (See Docket

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No. 21.)

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The Civil Rule governing pleading amendments, Federal Rule of Civil
Procedure 15, made applicable to habeas proceedings by 28 U.S.C. § 2242, Federal
Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11, allows amendments
with leave of court any time during a proceeding. Mayle, 545 U.S. at 654-55 (citing
Fed. R. Civ. P. 15(a)). Before a responsive pleading is served, pleadings may be
amended once as a matter of course, i.e., without seeking court leave. Id. at 655.
Order to Show Cause; Replace Proper Respondent
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BACKGROUND

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According to the amended petition and the attachments thereto, Petitioner

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was found guilty by a jury in San Francisco County Superior Court of non-violent

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pandering. (Am. Pet. at 2.) Petitioner was sentenced to 12 years in state prison. (Id.

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at 1.)

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Petitioner’s conviction was affirmed on appeal. He filed a state habeas

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petition, which the California Supreme Court denied. (Id. at 4.) Petitioner filed the

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instant federal habeas petition on June 27, 2011.

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DISCUSSION

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For the Northern District of California

United States District Court

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A.

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

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

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a).
It shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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B.

Legal Claims

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Petitioner raises the following claims for federal habeas relief: 1) newly

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discovered evidence of actual innocence, (Am. Pet. at 8); 2) witness gave false

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testimony at trial, (id. at 24); 3) prosecutorial misconduct, (id. at 28); 4) ineffective

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assistance by trial counsel, (id. at 41); 5) insufficient evidence to support the

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conviction, (id. at 57); 6) the trial court failed to instruct the jury on the definition of

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“lewd act,” (id. at 82); 7) evidence of uncharged crimes or bad acts were improperly

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admitted and should have been excluded, (id. at 90); 8) the cumulative effect of the

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prosecutor’s misconduct warrants reversal, (id. at 94); and 9) the trial court’s

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imposition of the upper term was based on facts not submitted to the jury or
Order to Show Cause; Replace Proper Respondent
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admitted by Petitioner and therefore the sentence violates Petitioner’s right a jury

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trial, (id. at 102). Liberally construed, these claims appear cognizable under § 2254

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and merit an answer from Respondent.

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C.

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Proper Respondent
The rules governing relief under 28 U.S.C. § 2254 require a person in

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custody pursuant to the judgment of a state court to name the “state officer having

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custody” of him as the respondent. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894,

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(9th Cir. 1996) (quoting Rule 2(a) of the Rules Governing Habeas Corpus Cases

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Under § 2254). The proper respondent is W. G. Sullivan, the Warden at CSP-Los
Angeles where Petitioner is currently incarcerated. The Clerk of the Court shall

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For the Northern District of California

United States District Court

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replace People of the State of California and Correctional Captain B. M. Cash with

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Warden W. G. Sullivan as Respondent in this action.

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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 by certified mail a copy of this order and the

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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

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order on Petitioner.

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2.

Respondent shall file with the court and serve on petitioner, within

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sixty (60) days of the issuance of this order, an answer conforming in all respects to

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Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be issued. 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 have been transcribed

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previously and that are relevant to a determination of the issues presented by the

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petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the Court and serving it on Respondent within thirty (30) days of his
Order to Show Cause; Replace Proper Respondent
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receipt of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu

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

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Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall

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file with the Court and serve on Respondent an opposition or statement of non-

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opposition within thirty (30) days of receipt of the motion, and Respondent shall

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file with the court and serve on Petitioner a reply within fifteen (15) days of receipt

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of any opposition.

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4.

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

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For the Northern District of California

United States District Court

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counsel. Petitioner must also keep the Court and all parties informed of any change

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of address.

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5.

Petitioner has been granted leave to proceed in forma pauperis, (see

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Docket No. 21). Accordingly, Petitioner’s request to compel the prison to complete

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his application, (Docket No. 20), is DISMISSED as moot.

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This order terminates Docket No. 20.

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DATED: February 1, 2012
EDWARD J. DAVILA
United States District Judge

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Order to Show Cause; Replace Proper Respondent
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

JEFFERY WALKER,

Case Number: CV11-03177 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
W. G. SULLIVAN, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
2/2/2012
That on
, 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.

Jeffery E. Walker F-11343
CSP Los Angeles County
P.O. Box 4670
Lancaster, CA 93539
Dated:

2/2/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk