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Eastman v. Gastelo

United States District Court, N.D. California

July 10, 2017

THOMAS R. EASTMAN, Petitioner,
v.
JOSIE GASTELO, Respondent.

          ORDER TO SHOW CAUSE

          JOSEPH C. SPERO, CHIEF MAGISTRATE JUDGE

         INTRODUCTION

         Petitioner, who consented to magistrate judge jurisdiction (Pet. at 7), seeks federal habeas relief under 28 U.S.C. § 2254 from his state convictions. 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.

         In response to the petition, respondent shall file an answer or a dispositive motion on or before September 12, 2017.

         BACKGROUND

         According to the petition, in 1982, a Contra Costa Superior Court jury convicted petitioner of second degree murder and the use of a deadly weapon. Consequent to these convictions, he was sentenced to 15 years to life in state prison.

         DISCUSSION

         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). 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).

         As grounds for federal habeas relief, petitioner claims that (1) the statutes under which he was convicted and sentenced are now “void for vagueness” in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016); (2) there was insufficient evidence that he possessed the requisite state of mind to commit second degree murder; and (3) the trial court made an erroneous ruling and failed to properly instruct the jury. When liberally construed, these claims are cognizable on federal habeas review.

         While the first claim may be timely, the second and third are likely untimely under AEDPA. Respondent is directed to consider whether the claims are untimely. If she concludes that they are, she may file a motion to dismiss on such grounds, though she is not required to do so.

         CONCLUSION

         1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a Magistrate Judge jurisdiction consent or declination to consent form on respondent and respondent's counsel, the Attorney General for the State of California. The Clerk shall also serve a copy of this order on petitioner.

         2. On or before September 12, 2017, respondent shall file with the Court and serve on petitioner 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 petitioner's cognizable claims. Respondent shall file with the answer and serve on petitioner a copy of 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.

         3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on respondent's counsel within ...


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