John Franklin Kenney v. P. D. Brazelton

Filing 8

ORDER GRANTING MOTION FOR RELIEF; RE-OPENING CASE; GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE re 6 MOTION Relief from Court's July 15, 2013 Order Dismissing Petitioner's Timely filed Habeas Petition for Failing to Pay the $5.00 Filing Fee Within 30 Days of Said Order re 3 Order filed by John Franklin Kenney. Signed by Judge Lucy H. Koh on 4/12/14. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/14/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN FRANKLIN KENNEY,
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Petitioner,
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vs.
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WARDEN P.D. BRAZELTON,
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Respondent.
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No. C 13-2562 LHK (PR)
ORDER GRANTING MOTION
FOR RELIEF; RE-OPENING
CASE; GRANTING MOTION TO
PROCEED IN FORMA
PAUPERIS; ORDER TO SHOW
CAUSE

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. On July 16, 2013, the court dismissed this action because
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petitioner failed to file a timely motion for leave to proceed in forma pauperis. On July 22, 2013,
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petitioner filed a motion for leave to proceed in forma pauperis. On March 24, 2014, petitioner
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filed a request for relief from judgment. Based on petitioner’s request, the court finds that
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petitioner has presented good cause as to why his motion for leave to proceed in forma pauperis
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was untimely. Accordingly, the court GRANTS petitioner’s motion for relief and RE-OPENS
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this action. Based on petitioner’s Certificate of Funds, petitioner’s motion for leave to proceed
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in forma pauperis is GRANTED. Respondent is ordered to show cause why the petition should
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not be granted.
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BACKGROUND
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According to the amended petition, petitioner was convicted by a jury in Monterey
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Order Re-Opening Case; Granting Motion to Proceed In Forma Pauperis; Order to Show Cause
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County Superior Court of first and second degree murder, and the jury found true several

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allegations. Petitioner was sentenced to a term of life without the possibility of parole,

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consecutive to 25-years to life, to run concurrently to a term of 15-years to life, to run

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consecutively to a term of an additional 25-years to life. In 2012, the California Court of Appeal

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affirmed the judgment, and the California Supreme Court denied review. Petitioner filed the

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underlying federal habeas petition on June 6, 2013.

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DISCUSSION
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

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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). A district court shall “award the writ or issue an order

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directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. §

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2243.

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B.

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Petitioner’s Claims
As grounds for federal habeas relief, petitioner claims: (1) the trial court committed error

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when it instructed the jury on mutual combat, initial aggressor, and pretextual self-defense; (2)

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the trial court had a sua sponte duty to define “mutual combat” once the jury was instructed on

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it1; (3) the trial court erred by failing to instruct on “defense of property” and counsel was

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ineffective when he agreed to the withdrawal of CALCRIM No. 3475; (4) the trial court erred in

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admitting evidence of a DVD; and (5) the trial court erred in instructing on CALCRIM No. 362.

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Liberally construed, petitioner’s allegations are sufficient to require a response. The court orders

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respondent to show cause why the petition should not be granted.

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Petitioner briefly mentions that he wishes the court to stay this action. Should petitioner
wish to stay this case, he must file a separate motion to stay and hold the case in abeyance. If

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Petitioner’s related allegation that his “substantial rights” were affected under
California Penal Code § 1259 is DISMISSED for failure to state a cognizable claim.
Order Re-Opening Case; Granting Motion to Proceed In Forma Pauperis; Order to Show Cause
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petitioner files such a motion, petitioner should be prepared to explain why he did not complete

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exhaustion before he initiated this action.

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CONCLUSION

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1.

Petitioner’s motion for relief is GRANTED. The clerk shall RE-OPEN this case.

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2.

The clerk shall serve by mail a copy of this order and the petition (docket no. 1)

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and all attachments thereto upon respondent and respondent’s attorney, the Attorney General of

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

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3.

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

days of the filing date 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. Respondent shall file with the answer and serve on petitioner a copy of all portions of

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the state trial record that have been transcribed previously and that are relevant to a

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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 thirty days of the filing date of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

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

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2254 Cases within sixty days of the filing date of this order. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or statement of non-

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opposition within twenty-eight days of the filing date of the motion, and respondent shall file

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with the court and serve on petitioner a reply within fourteen days of the filing date of any

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opposition.

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5.

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 and all parties informed of any change of address by filing a separate paper

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captioned “Notice of Change of Address.” He must comply with the court’s orders in a timely

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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).
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IT IS SO ORDERED.
DATED:

4/12/14

______________________________
LUCY H. KOH
United States District Judge

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Order Re-Opening Case; Granting Motion to Proceed In Forma Pauperis; Order to Show Cause
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