Thompson v. Fox

Filing 15

ORDER TO SHOW CAUSE. Signed by Judge Lucy Koh on 9/2/2015. (lhklc2S, COURT STAFF) (Filed on 9/2/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

DAMARCUS ANTHONY THOMPSON,

Case No. 14-CV-05178-LHK

Petitioner,

13
14

v.

15

ORDER TO SHOW CAUSE

ROBERT W. FOX,

16

Respondent.

17
18

On November 21, 2014, Petitioner Damarcus Anthony Thompson (“Petitioner”),

19

represented by counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

20

challenging his detention at the California Medical Facility in Vacaville, California. ECF No. 1.

21

On August 28, 2015, Petitioner filed a First Amended Petition for Writ of Habeas Corpus. ECF

22

No. 14 (“First Amended Petition”). For good cause shown, the Court hereby ORDERS

23

Respondent Robert W. Fox (“Respondent”) to show cause why the First Amended Petition should

24

not be granted.

25

I. BACKGROUND

26
27
28

On September 6, 2011, following a jury trial, Petitioner was convicted of gross vehicular
manslaughter while intoxicated; fleeing the scene of the crime; driving under the influence of
1
Case No. 14-CV-05178-LHK
ORDER TO SHOW CAUSE

1

alcohol and causing personal injury; and leaving the scene of an injury producing accident. First

2

Am. Pet. ¶ 1. In addition, Petitioner was convicted of causing bodily injury and death to multiple

3

victims, driving at an excessive speed, and causing great bodily injury to multiple victims. Id.

4

On October 21, 2011, Petitioner was sentenced to a total term of 20 years 10 months in
state prison. Id.¶ 2. On November 15, 2011, Petitioner filed a timely appeal to the First Appellate

6

District alleging insufficient evidence to support Petitioner’s convictions, instructional error,

7

prosecutorial misconduct, and sentencing error. Id. ¶ 3. On May 28, 2013, the First District Court

8

of Appeal affirmed the judgment of the trial court, but remanded for resentencing. Id. ¶ 4.

9

Petitioner subsequently filed a petition for review with the California Supreme Court, which the

10

California Supreme Court denied on August 30, 2013. Id. ¶ 5. On October 18, 2013, Petitioner

11
United States District Court
Northern District of California

5

was resentenced to a total term of 16 years, 10 months. Id. ¶ 6.

12

On November 21, 2014, Petitioner filed the instant Petition. ECF No. 1. On February 2,

13

2015, Respondent filed a motion to dismiss for failure to exhaust state remedies on the grounds

14

that one of Petitioner’s asserted grounds for relief—that the prosecutor committed misconduct in

15

closing arguments—was not presented to the California Supreme Court and therefore the petition

16

contained an unexhausted claim. ECF No. 7, at 3. Petitioner did not file an opposition to

17

Respondent’s motion to dismiss. Rather, on February 17, 2015, Petitioner filed a motion to amend

18

the petition for writ of habeas corpus, requesting leave to amend the petition to remove

19

Petitioner’s unexhausted claim. ECF No. 8, at 1. Also on February 17, 2015, Petitioner filed a

20

motion to stay and hold the petition in abeyance so that Petitioner could exhaust a new claim in

21

state court. ECF No. 9, at 1.

22

On July 29, 2015, the Court granted Petitioner’s motion to amend the petition, denied

23

Respondent’s motion to dismiss as moot, and denied Petitioner’s motion to stay on the grounds

24

that the new claim lacked merit. ECF No. 13. The Court ordered Petitioner to file an amended

25

petition within 30 days of the date of the Order. Id. at 13. On August 28, 2015, Petitioner timely

26

filed the First Amended Petition. See First Am. Pet.

27
28

2
Case No. 14-CV-05178-LHK
ORDER TO SHOW CAUSE

1

II. DISCUSSION
A. Standard of Review

2

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

3
custody pursuant to the judgment of a State court only on the ground that he is in custody in
4
5

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
Court shall “award the writ or issue an order directing the respondent to show cause why the writ

6
should not be granted, unless it appears from the application that the applicant or person detained
7

is not entitled thereto.” Id. § 2243.

8
B. Claims
9

Petitioner asserts two claims: (1) there was insufficient evidence to support Petitioner’s

10
convictions; and (2) the trial court failed to adequately inform the jury of the necessary elements
11
United States District Court
Northern District of California

of gross vehicular manslaughter while intoxicated and thereby deprived Petitioner of his right to
12
be found guilty unless all elements of the offense are proven to the jury beyond a reasonable
13
doubt. Pet. ¶ 18.
14

Petitioner’s claims appear cognizable under § 2254 and merit an answer from Respondent.

15
Accordingly, the Court hereby ORDERS Respondent to show cause why the First Amended
16
Petition should not be granted.
17
III. CONCLUSION
18
For the foregoing reasons and for good cause shown,
19
1. The Clerk shall serve by certified mail a copy of this Order and the Amended Petition
20

(ECF No. 15) and all attachments thereto on Respondent and Respondent’s attorney, the Attorney

21
General of the State of California. The Clerk shall also serve a copy of this Order on Petitioner.
22
2. Respondent shall file with the Court and serve on Petitioner, within sixty (60) days of
23
the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules Governing
24
Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.
25
Respondent shall file with the Answer and serve on Petitioner a copy of all portions of the state
26
trial record that have been transcribed previously and that are relevant to a determination of the
27
28

3
Case No. 14-CV-05178-LHK
ORDER TO SHOW CAUSE

1
2
3
4

issues presented by the Amended Petition.
3. 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 (30) days of his receipt of the Answer.
4. 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

6

Cases within sixty (60) days of the issuance of this Order. If Respondent files such a motion,

7

Petitioner shall file with the Court and serve on Respondent an Opposition or Statement of Non-

8

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

9

Court and serve on Petitioner a Reply within fifteen (15) days of receipt of any Opposition.

10

5. Petitioner is reminded that all communications with the Court must be served on

11
United States District Court
Northern District of California

5

Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must also

12

keep the Court and all parties informed of any change of address. Petitioner must comply with the

13

Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this action for

14

failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

15

IT IS SO ORDERED.

16
17

Dated: September 2, 2015
______________________________________
LUCY H. KOH
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

4
Case No. 14-CV-05178-LHK
ORDER TO SHOW CAUSE