Khan v. Pollard ( 2020 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MOHAMMED Z. KHAN, No. C 19-8349 WHA (PR) 10 Petitioner, ORDER TO SHOW CAUSE; DENYING LEAVE TO PROCEED IN 11 v. FORMA PAUPERIS 12 M. POLLARD, (ECF No. 2) 13 Respondent. / 14 15 INTRODUCTION 16 Petitioner, who appears to be on parole or probation, filed this pro se petition for a writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction. For the 18 reasons discussed below, respondent is ordered to show cause why the petition should not be 19 granted. He has paid the filing fee, which means his application for leave to proceed in forma 20 pauperis is DENIED. 21 STATEMENT 22 Petitioner was convicted in Alameda County Superior Court in 2016 of first-degree 23 murder and attempted voluntary manslaughter. He was sentenced to a term of 32 years to life in 24 state prison. On appeal, the California Court of Appeal affirmed the judgment, and the 25 California Supreme Court denied review. Thereafter, petitioner filed the instant federal 26 petition. 27 ANALYSIS 28 A. STANDARD OF REVIEW 1 custody pursuant to the judgment of a State court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 3 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 4 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 5 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 6 court must “specify all the grounds for relief which are available to the petitioner ... and shall 7 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 8 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 9 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 10 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 11 688, 689 (1st Cir. 1970)). 12 B. LEGAL CLAIMS 13 Petitioner claims that (1) there was insufficient evidence to support his conviction of 14 attempted involuntary manslaughter; (2) there was insufficient evidence to support his 15 conviction of first-degree murder; and (3) the trial court erred by issuing a jury instruction 16 under CALCRIM No. 540. These claims, when liberally construed, and warrant a response. 17 CONCLUSION 18 1. The clerk shall mail a copy of this order and the petition with all attachments to the 19 respondent and the respondent's attorney, the Attorney General of the State of California. The 20 clerk shall also serve a copy of this order on the petitioner. 21 2. Respondent shall file with the court and serve on petitioner, within sixty-three (63) 22 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 23 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 24 granted based on the claim found cognizable herein. Respondent shall file with the answer and 25 serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are 26 relevant to a determination of the issues presented by the petition. 27 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 28 court and serving it on respondent within twenty-eight days of the date the answer is filed. 1 3. Respondent may file, within sixty-three (63) days, a motion to dismiss on procedural 2 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 3 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file 4 with the court and serve on respondent an opposition or statement of non-opposition within 5 twenty-eight days of the date the motion is filed, and respondent shall file with the court and 6 serve on petitioner a reply within fourteen days of the date any opposition is filed. 7 4. Petitioner is reminded that all communications with the court must be served on 8 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 9 keep the court informed of any change of address and must comply with the court's orders in a 10 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 11 IT IS SO ORDERED. 12 Dated: January 23, 2020. 13 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28