Pennybaker v. Kuan ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT WILLIAM STEPP, Case No. 20-cv-01688-JD 8 Petitioner, ORDER FOR RESPONDENT TO 9 v. SHOW CAUSE 10 IN RE: WRIT OF HABEAS CORPUS, Re: Dkt. No. 14 Respondent. 11 12 13 Robert Stepp, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 14 28 U.S.C. § 2254. He also applied for leave to proceed in forma pauperis. Petitioner was 15 convicted in Humboldt County, which is in this district, so venue is proper. See 28 U.S.C. § 16 2241(d). 17 BACKGROUND 18 Petitioner pled guilty to attempted murder and was sentenced to 21 years in state prison on 19 November 16, 2017. Petition at 1. His state habeas petitions were denied. Id. at 3-5. 20 DISCUSSION 21 STANDARD OF REVIEW 22 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 23 custody pursuant to the judgment of a State court only on the ground that he is in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 25 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 26 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 27 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 1 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 2 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 3 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 4 688, 689 (1st Cir. 1970)). 5 LEGAL CLAIMS 6 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court violated his 7 plea agreement and improperly imposed sentencing enhancements; and (2) the state courts 8 improperly reviewed his habeas petitions. The second claim is dismissed because habeas relief is 9 not available for an alleged state law error. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a 10 federal habeas court cannot reexamine a state court’s interpretation and application of state law). 11 Liberally construed, the first claim is sufficient to require a response. 12 CONCLUSION 13 1. The motion to proceed in forma pauperis (Docket No. 14) is GRANTED. The 14 second claim is dismissed from this action. 15 2. The clerk shall serve by electronic mail a copy of this order on the Attorney 16 General of the State of California at SFAWTParalegals@doj.ca.gov. The clerk also shall serve a 17 copy of this order on petitioner by regular mail. Respondent can view the petition on the 18 electronic docket (Docket No. 1). 19 3. Respondent shall file with the Court and serve on petitioner, within fifty-six (56) 20 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 21 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 22 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 23 trial record that have been transcribed previously and that are relevant to a determination of the 24 issues presented by the petition. 25 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 26 Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 27 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 1 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order 2 || is entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an 3 opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, 4 || and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days 5 || of receipt of any opposition. 6 5. Petitioner is reminded that all communications with the Court must be served on 7 || respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 8 || the Court informed of any change of address and must comply with the Court’s orders in a timely 9 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 10 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 11 1997) (Rule 41(b) applicable in habeas cases). 12 IT IS SO ORDERED. 13 Dated: October 27, 2020 14 15 JAMES TO = 16 United Stftes District Judge 18 19 20 21 22 23 24 25 26 27 28