United States District Court, N.D. California
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND
FOR RESPONDENT TO SHOW CAUSE Re: Dkt. Nos. 2, 6
PHYLLIS J. HAMILTON United States District Judge
a California prisoner, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
was convicted in Lake County which is in this district, so
venue is proper here. See 28 U.S.C. § 2241(d).
states his case involves an incident where he was driving
while intoxicated and was in a car accident where an
individual was killed. Petition at 41. Petitioner pleaded
nolo contedere to murder and he states that he had a prior
serious felony. Id. He was sentenced on April 25,
2011, to fifteen years to life plus five years. Petition at
1. He did not appeal his case but filed a habeas petition in
the California Supreme Court on January 11, 2017, that was
denied on February 15, 2017. Petition at 2-3, 10, 12
court may entertain a petition for writ of habeas corpus
“in behalf of a person 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. § 2254(a);
Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas
corpus petitions must meet heightened pleading requirements.
McFarland v. Scott, 512 U.S. 849, 856 (1994). An
application for a federal writ of habeas corpus filed by a
prisoner who is in state custody pursuant to a judgment of a
state court must “specify all the grounds for relief
available to the petitioner ... [and] state the facts
supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. § 2254.
“‘[N]otice' pleading is not sufficient, for
the petition is expected to state facts that point to a
‘real possibility of constitutional error.'”
Rule 4 Advisory Committee Notes (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
sole ground for federal habeas relief asserts that the
California second degree felony murder law is
constitutionally invalid pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). Johnson was
found to be retroactive on collateral review in Welch v.
United States, 136 S.Ct. 1257 (2016). Liberally
construed, this claim is sufficient to require a
Petitioner's motion for leave to proceed in forma
pauperis (Docket Nos. 2, 6) is GRANTED.
clerk shall serve by regular 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 copy of this
order on petitioner.
Respondent shall file with the court and serve on petitioner,
within fifty-six (56) days of the issuance of this order, an
answer conforming in all respects to Rule 5 of the Rules
Governing Section 2254 Cases, showing cause why a writ of
habeas corpus should not be granted. Respondent shall file
with the answer and serve on petitioner a copy of all
portions of the state trial record that have been transcribed
previously and that are relevant to a determination of the
issues presented by the petition.
petitioner wishes to respond to the answer, he shall do so by
filing a traverse with the court and serving it on respondent