United States District Court, N.D. California
THOMAS R. EASTMAN, Petitioner,
JOSIE GASTELO, Respondent.
ORDER TO SHOW CAUSE
C. SPERO, CHIEF MAGISTRATE JUDGE
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.
response to the petition, respondent shall file an answer or
a dispositive motion on or before September 12, 2017.
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.
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).
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.
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.
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.
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.
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 ...