Mitchell v. Sherman ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JUSTIN MITCHELL, Case No. 19-cv-04894-JCS 8 Plaintiff, ORDER GRANTING MOTION TO 9 v. LIFT STAY 10 STUART SHERMAN, ORDER TO SHOW CAUSE 11 Defendant. 12 I. INTRODUCTION 13 Petitioner Justin Mitchell seeks federal habeas relief under 28 U.S.C. § 2254 from his 14 criminal convictions in California state court. The petition for such relief is here for review under 15 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. 16 The Court previously stayed proceedings to allow Mitchell to exhaust certain theories in 17 state court, which Mitchell has now done. Mitchell’s motion to lift the stay is GRANTED. 18 Respondent Stuart Sherman is ORDERED TO SHOW CAUSE why relief should not be granted, 19 and shall file a response to the petition on or before May 11, 2020. 20 II. BACKGROUND 21 Mitchell states in his petition that he was convicted of burglary and other charges 22 following a jury trial in the California Superior Court for San Mateo County. A California 23 appellate court affirmed his conviction in March of 2018, and the California Supreme Court 24 summarily denied review in May of 2018. Mitchell filed this habeas action on August 14, 2019. 25 At Mitchell’s request, the Court stayed proceedings to allow Mitchell to pursue unexhausted 26 theories in state court pursuant to Rhines v. Weber, 544 U.S. 269 (2005). The California Supreme 27 Court denied Mitchell’s habeas petition without comment on December 18, 2019. The Court now 1 III. ANALYSIS 2 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 3 custody pursuant to the judgment of a State court only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 5 district court considering an application for a writ of habeas corpus shall “award the writ or issue 6 an order directing the respondent to show cause why the writ should not be granted, unless it 7 appears from the application that the applicant or person detained is not entitled thereto.” 28 8 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 9 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 10 908 F.2d 490, 491 (9th Cir. 1990). 11 As grounds for federal habeas relief, Mitchell asserts: (1) that an improper jury instruction 12 regarding permissible inferences from failure to explain or deny testimony violated his rights 13 under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, see Pet. 14 (dkt. 1) ¶¶ 10–11; and (2) that Mitchell’s trial attorney’s failure to object to that instruction and 15 failure to seek an instruction regarding cautious treatment of accomplice testimony constitute 16 ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), violating 17 Mitchell’s rights under the Sixth Amendment, Pet. ¶¶ 12–18. When liberally construed, these 18 claims are cognizable in a federal habeas corpus action. 19 IV. CONCLUSION 20 1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a 21 magistrate judge jurisdiction consent or declination form on Respondent and Respondent’s 22 counsel, the Attorney General for the State of California. 23 2. No later than May 11, 2020, Respondent shall file an answer conforming in all respects 24 to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus 25 should not be granted based on Mitchell’s claims. Respondent shall file with the answer all 26 portions of the state trial record that previously have been transcribed and that are relevant to a 27 determination of the issues presented by the petition. 1 Court no later than June 8, 2020. 2 4. In lieu of an answer, Respondent may file, no later than May 11, 2020, a motion to 3 || dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of the 4 || Rules Governing Section 2254 Cases. If Respondent files such a motion, Mitchell shall file an 5 opposition or statement of non-opposition no later than June 8, 2020, and Respondent shall file a 6 || reply no later than June 22, 2020. 7 5. Upon a showing of good cause, requests for a reasonable extension of time will be 8 granted provided they are filed on or before the deadline they seek to extend. 9 IT IS SO ORDERED. 10 || Dated: February 11, 2020 11 € J PH C. SPERO %L ief Magistrate Judge © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28