Stuart v. Sherman

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Nathanael Cousins on 2/13/2017. (Attachments: # 1 Certificate/Proof of Service) (lmh, COURT STAFF) (Filed on 2/13/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WENDELL STUART,
United States District Court
Northern District of California

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Case No. 16-cv-06073 NC (PR)

Petitioner,

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ORDER TO SHOW CAUSE

v.

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S. SHERMAN, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. 1 Petitioner has paid the filing fee. For the reasons that follow, the
court dismisses one claim, and orders respondent 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 petition, after a jury trial, petitioner was convicted of second

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Petitioner has consented to magistrate judge jurisdiction. Dkt. No. 3.

Case No. 16-cv-06073 NC (PR)
ORDER TO SHOW CAUSE

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degree felony murder in Alameda County Superior Court. Petitioner was sentenced to a

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term of 16 years to life in state prison. The California Court of Appeal affirmed, and the

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California Supreme Court denied a petition for review. Petitioner has also filed several

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unsuccessful state habeas petitions. Petitioner filed the instant federal petition on October

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20, 2016.
DISCUSSION

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A.

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

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Standard of Review

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.

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United States District Court
Northern District of California

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§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court shall “award the writ or issue an order directing the respondent to

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show cause why the writ should not be granted, unless it appears from the application that
the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary
dismissal is appropriate only where the allegations in the petition are vague or conclusory,
palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d
490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
B.

Petitioner’s Claims
Petitioner claims that: (1) the parole board denied him equal protection of the law

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when it refused to calculate petitioner’s prison term, in violation of the stipulation in In re
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Butler, 236 Cal. App. 4th 1222 (2015), and (2) petitioner’s conviction is unconstitutional
as void for vagueness pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). The
court orders respondent to show cause why the petition should not be granted as to these
claims.
Petitioner also claims that he was denied due process because he was prosecuted

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Case No. 16-cv-06073 NC (PR)
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under the felony murder law, even though felony murder is not established in the

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California Penal Code. This court is bound by the state’s interpretation of its own laws,

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see Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and the state’s highest court is the final

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authority on the law of that state, see Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979).

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The California Supreme Court has determined that the second degree felony murder rule,

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although derived from common law, is based on a statute, and thus, is valid. People v.

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United States District Court
Northern District of California

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Sarun Chun, 45 Cal. 4th 1172, 1181-1188 (2009); see also McMillan v. Gomez, 19 F.3d
465, 470 (9th Cir. 1994) (“[C]alifornia’s felony murder rule is not an evidentiary shortcut
to finding malice, but a rule of substantive law establishing a first degree murder penalty
for murders which occurred in the course of committing another felony . . . . [petitioner’s]
intent, which the prosecution must still prove, relates to the other felony rather than the
murder.”). Accordingly, this claim is DISMISSED.
CONCLUSION

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For the foregoing reasons:
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1. The Clerk of the Court is directed to serve a Magistrate Judge jurisdiction
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consent form, a copy of this Order, and the petition, and all attachments thereto, on
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respondent and respondent’s attorney, the Attorney General of the State of California.
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Respondent shall file his Magistrate Judge jurisdiction consent form no later than thirty
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(30) days from the filing date of this Order.
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2. Respondent is directed to file with the court and serve on petitioner, within sixty
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(60) 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 based on the claims found cognizable herein. Respondent must file
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with the answer and serve on petitioner a copy of all portions of the state trial record that
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have been transcribed previously and that are relevant to a determination of the issues
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Case No. 16-cv-06073 NC (PR)
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presented by the petition.
If petitioner wishes to respond to the answer, she must do so by filing a traverse

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with the Court and serving it on Respondent within thirty (30) days of the date the answer

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is filed.

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3. Respondent may file, within sixty (60) days, a motion to dismiss on procedural

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

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Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner must

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

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within twenty-eight (28) days of the date the motion is filed, and respondent must file with
the court and serve on petitioner a reply within fourteen (14) days of the date any

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United States District Court
Northern District of California

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opposition is filed.

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4. 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

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must keep the court informed of any change of address and must comply with the court’s

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

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

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IT IS SO ORDERED.
DATED:

February 13, 2017

NATHANAEL M. COUSINS
United States Magistrate Judge

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Case No. 16-cv-06073 NC (PR)
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