United States District Court, N.D. California
ORDER TO SHOW CAUSE
C. SPERO Chief Magistrate Judge
Michael Johnson seeks federal habeas relief under 28 U.S.C.
§ 2254 from his state conviction. The petition for such
relief is here for review under 28 U.S.C. § 2243 and
Rule 4 of the Rules Governing Section 2254 Cases. Respondent
Cynthia Tamkins shall file a response to the petition on or
before August 14, 2017.
16, 2014, the Superior Court of California, County of Napa,
sentenced Johnson to twelve years imprisonment after he was
found guilty of one count of forcible rape (Cal. Penal Code
§ 261, subd. (a)(2)), one count of misdemeanor battery
(Cal. Penal Code § 242) as a lesser included offense;
two counts of forcible penetration (Cal. Penal Code §
289, subd. (a)(1)(A)) and one count of false imprisonment
(Cal. Penal Code § 236). He appealed his conviction to
the California Court of Appeal, First Appellate District,
Division Five. The Court of Appeal affirmed the superior
court's judgment on August 25, 2015. The California
Supreme Court denied review on October 28, 2015. The instant
petition was filed on January 25, 2017, within a year of the
date on which the 90-day statutory period for filing a
petition for writ of certiorari from the United States
Supreme Court expired.
is presently in custody at the California Rehabilitation
Center, in Norco, California.
Court may entertain a petition for writ of habeas corpus on
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). A district
court considering an application for a writ of habeas corpus
shall “award the writ or issue an order directing the
respondent to 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).
grounds for federal habeas relief, Johnson asserts that the
trial court violated his right to Due Process under the
Fourteenth Amendment and his right to a trial by jury by
instructing the jury of what he contends is a mandatory,
conclusive presumption that the existence of a dating
relationship between petitioner and the complainant was not
sufficient to show consent. Petitioner contends the
instruction unconstitutionally lowered the prosecution's
burden of proof and constitutes a form of error under
Sandstrom v. Montana, 442 U.S. 510 (1979). When
liberally construed, these claims are cognizable in a federal
habeas corpus action.
Clerk shall serve a copy of this order, the petition and all
attachments thereto, and a magistrate judge jurisdiction
consent or declination form on Respondent and
Respondent's counsel, the Attorney General for the State
later than August 14, 2017, Respondent shall file 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 based on Johnson's claims.
Respondent shall file with the answer all portions of the
state trial record that previously have been transcribed and
that are relevant to a determination of the issues presented
by the petition.
Johnson wishes to respond to the answer, he shall do so by
filing a traverse with the Court within thirty (30) days of
the date the answer is filed.
lieu of an answer, Respondent may file, no later than August
14, 2017, a motion to dismiss on procedural grounds, as set
forth in the Advisory Committee Notes to Rule 4 of the Rules
Governing Section 2254 Cases. If Respondent files such a
motion, Johnson shall file an opposition or statement of
non-opposition within thirty (30) days of the date the motion