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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 WENDELL STUART, United States District Court Northern District of California 11 Case No. 16-cv-06073 NC (PR) Petitioner, 12 ORDER TO SHOW CAUSE v. 13 S. SHERMAN, Warden, 14 Respondent. 15 16 17 18 19 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 20 not be granted. 21 BACKGROUND 22 According to the petition, after a jury trial, petitioner was convicted of second 23 24 1 25 26 27 28 Petitioner has consented to magistrate judge jurisdiction. Dkt. No. 3. Case No. 16-cv-06073 NC (PR) ORDER TO SHOW CAUSE 1 1 degree felony murder in Alameda County Superior Court. Petitioner was sentenced to a 2 term of 16 years to life in state prison. The California Court of Appeal affirmed, and the 3 California Supreme Court denied a petition for review. Petitioner has also filed several 4 unsuccessful state habeas petitions. Petitioner filed the instant federal petition on October 5 20, 2016. DISCUSSION 6 7 A. This court may entertain a petition for a writ of habeas corpus “in behalf of a person 8 9 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. 11 United States District Court Northern District of California 10 § 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 12 13 14 15 16 17 18 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 19 when it refused to calculate petitioner’s prison term, in violation of the stipulation in In re 20 21 22 23 24 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 25 26 27 28 Case No. 16-cv-06073 NC (PR) ORDER TO SHOW CAUSE 2 1 under the felony murder law, even though felony murder is not established in the 2 California Penal Code. This court is bound by the state’s interpretation of its own laws, 3 see Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and the state’s highest court is the final 4 authority on the law of that state, see Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). 5 The California Supreme Court has determined that the second degree felony murder rule, 6 although derived from common law, is based on a statute, and thus, is valid. People v. 7 8 9 10 United States District Court Northern District of California 11 12 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 13 For the foregoing reasons: 14 1. The Clerk of the Court is directed to serve a Magistrate Judge jurisdiction 15 consent form, a copy of this Order, and the petition, and all attachments thereto, on 16 respondent and respondent’s attorney, the Attorney General of the State of California. 17 Respondent shall file his Magistrate Judge jurisdiction consent form no later than thirty 18 (30) days from the filing date of this Order. 19 2. Respondent is directed to file with the court and serve on petitioner, within sixty 20 (60) days of the issuance of this order, an answer conforming in all respects to Rule 5 of 21 the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 22 should not be granted based on the claims found cognizable herein. Respondent must file 23 with the answer and serve on petitioner a copy of all portions of the state trial record that 24 have been transcribed previously and that are relevant to a determination of the issues 25 26 27 28 Case No. 16-cv-06073 NC (PR) ORDER TO SHOW CAUSE 3 1 2 presented by the petition. If petitioner wishes to respond to the answer, she must do so by filing a traverse 3 with the Court and serving it on Respondent within thirty (30) days of the date the answer 4 is filed. 5 3. Respondent may file, within sixty (60) days, a motion to dismiss on procedural 6 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 7 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner must 8 file with the court and serve on respondent an opposition or statement of non-opposition 9 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 11 United States District Court Northern District of California 10 opposition is filed. 12 4. Petitioner is reminded that all communications with the court must be served on 13 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 14 must keep the court informed of any change of address and must comply with the court’s 15 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 16 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 17 18 19 IT IS SO ORDERED. DATED: February 13, 2017 NATHANAEL M. COUSINS United States Magistrate Judge 20 21 22 23 24 25 26 27 28 Case No. 16-cv-06073 NC (PR) ORDER TO SHOW CAUSE 4

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