Ford v. Lynch ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DARREN FORD, 7 Case No. 16-cv-03051-RS (PR) Petitioner, 8 v. ORDER TO SHOW CAUSE 9 DANIEL PARAMO, 10 Respondent. 11 12 13 INTRODUCTION 14 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 15 convictions. The fourth amended petition for such relief is now before the Court for 16 review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 17 Cases. 18 The fourth amended petition states a cognizable claim. On or before April 3, 2023, 19 respondent shall file an answer or a dispositive motion in response to the petition. 20 BACKGROUND 21 In 2012, a Santa Clara County Superior Court jury found petitioner guilty of two 22 counts of annoying or molesting children, and one count of misdemeanor battery. The trial 23 court found true various sentencing allegations. Consequent to these verdicts and findings, 24 petitioner was sentenced to 50 years to life in state prison. 25 DISCUSSION 26 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 27 in custody pursuant to the judgment of a State court only on the ground that he is in 1 § 2254(a). A district court considering an application for a writ of habeas corpus shall 2 “award the writ or issue an order directing the respondent to show cause why the writ 3 should not be granted, unless it appears from the application that the applicant or person 4 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 5 only where the allegations in the petition are vague or conclusory, palpably incredible, or 6 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 7 As grounds for federal habeas relief, petitioner alleges (1) his sentence is 8 unconstitutional; and (2) he was assessed a restitution fine without a proper hearing on his 9 ability to pay. When liberally construed, Claim 1 is cognizable on federal habeas review 10 and shall proceed. 11 Claim 2 is DISMISSED. A federal habeas court is limited to review of challenges 12 to the petitioner’s being in custody in violation of the United States Constitution. See 28 13 U.S.C. § 2254. A federal court lacks jurisdiction to hear claims that challenge the money 14 portion of a state judgment, such as a restitution order, which does not affect the duration 15 of custody. See Bailey v. Hill, 599 F.3d 976, 981 (9th Cir. 2010) (affirming rejection of 16 habeas ineffective assistance of counsel claim based on counsel’s failure to challenge 17 restitution order because restitution does not affect duration of custody). 18 CONCLUSION 19 1. The Clerk shall serve electronically a copy of this order upon the respondent and 20 the respondent’s attorney, the Attorney General of the State of California, at the following 21 email addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The 22 petition and the exhibits thereto are available via the Electronic Case Filing System for the 23 Northern District of California. The Clerk shall serve by mail a copy of this order on 24 petitioner. 25 2. On or before April 3, 2023, respondent shall file with the Court and serve on 26 petitioner, an answer conforming in all respects to Rule 5 of the Rules Governing Section 27 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 1 petitioner’s cognizable claims. Respondent shall file with the answer and serve on 2 petitioner a copy of all portions of the state trial record that previously have been 3 transcribed and that are relevant to a determination of the issues presented by the petition. 4 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 5 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 6 answer is filed. 7 4. In lieu of an answer, respondent may file, on or before April 3, 2023, a motion 8 to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 9 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner 10 shall file with the Court and serve on respondent an opposition or statement of non- 11 opposition within thirty (30) days of the date the motion is filed, and respondent shall file 12 with the Court and serve on petitioner a reply within fifteen (15) days of the date any 13 opposition is filed. 14 5. Petitioner is reminded that all communications with the Court must be served on 15 respondent by mailing a true copy of the document to respondent’s counsel. 16 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 17 Court and respondent informed of any change of address and must comply with the 18 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 19 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 20 7. Upon a showing of good cause, requests for a reasonable extension of time will 21 be granted provided they are filed on or before the deadline they seek to extend. 22 IT IS SO ORDERED. 23 Dated: December _5__, 2022 _________________________ 24 RICHARD SEEBORG 25 Chief United States District Judge 26 27