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West v. Hatton

United States District Court, N.D. California

April 17, 2017

BARTON FARRIS WEST, Petitioner,
v.
SHAWN HATTON, et al., Respondent.

          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

         Petitioner, 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).

         BACKGROUND

         Petitioner 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

         DISCUSSION

         STANDARD OF REVIEW

         This 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)).

         LEGAL CLAIMS

         Petitioner's 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 response.[1]

         CONCLUSION

         1. Petitioner's motion for leave to proceed in forma pauperis (Docket Nos. 2, 6) is GRANTED.

         2. The 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.

         3. 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.

         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 ...


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