1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DEMOND A. SPIKES, Case No. 22-cv-07293-HSG

8 Petitioner, ORDER GRANTING REQUEST TO

REOPEN; VACATING ORDER OF

9 v. DISMISSAL AND JUDGMENT;

GRANTING LEAVE TO PROCEED IN

10 GISELLE MATTESON, FORMA PAUPERIS; ORDERING

RESPONDENT TO SHOW CAUSE

11 Respondent. Re: Dkt. No. 8 12

13 14 Petitioner, an inmate at California State Prison – Solano, filed this pro se action seeking a 15 writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2016 conviction from San 16 Mateo County Superior Court. See generally Dkt. No. 1. For the reasons set forth below, the 17 Court GRANTS Petitioner’s request to reopen the case, Dkt. No. 8; ORDERS the Clerk to 18 VACATE the Order of Dismissal and Judgment, Dkt. Nos. 6, 7, and REOPEN this action; 19 GRANTS Petitioner leave to proceed in forma pauperis, Dkt. No. 8; and ORDERS Respondent to 20 show cause why federal habeas relief should not be granted. 21 DISCUSSION 22 I. Request to Reopen and Request for Ruling 23 Petitioner commenced this action on or about November 17, 2022, when he filed a pro se 24 petition for a writ of habeas corpus. See generally Dkt. No. 1. On February 13, 2023, the Court 25 dismissed this action without prejudice because Petitioner had not filed an application to proceed 26 in forma pauperis or paid the filing fee. Dkt. Nos. 6, 7. In the Order of Dismissal, the Court 27 instructed Petitioner that any motion requesting leave to reopen this action must be accompanied 1 On April 28, 2023, Petitioner filed a motion requesting that the Court reconsider its 2 dismissal of this action, along with a complete in forma pauperis application. Dkt. No. 8. As 3 Petitioner has corrected the filing deficiency, the Court GRANTS the request to reopen this action. 4 Dkt. No. 8. The Court ORDERS the Clerk to VACATE the Order of Dismissal and related 5 judgment, Dkt. Nos. 6, 7, and REOPEN this action. 6 II. Screening Petition 7 A. Standard of Review 8 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 9 custody pursuant to the judgment of a state court only on the ground that he is in custody in 10 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 11 Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing 12 the respondent to show cause why the writ should not be granted, unless it appears from the 13 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 14 B. Amended Petition1 15 In 2016, Petitioner was found guilty of first-degree murder (Cal. Penal Code § 187), 16 shooting at an inhabited dwelling (Cal. Penal Code § 246), and felon in possession of a firearm 17 (Cal. Penal Code § 29800(a)(1)) by a San Mateo County jury. The jury also found true two 18 allegations of discharge of a firearm causing great bodily injury or death (Cal. Penal Code 19 § 12022.53(d)). Petitioner was sentenced to a term of 124 years to life in state prison. Dkt. No. 20 10 at 2, 16. 21 The petition alleges the following claims for federal habeas relief: (1) Petitioner’s first- 22 degree murder conviction is not supported by sufficient evidence of deliberate and premeditation; 23 (2) the state court erred in excluding evidence of third-party culpability, in violation of Petitioner’s 24 rights to due process and to present a complete defense; (3) the state court erred in admitting other 25 crimes evidence; (4) the prosecutor committed misconduct when the prosecutor elicited 26 inadmissible evidence of Petitioner’s prior violence against prostitutes and argued an improper 27 1 inference of bad character from that evidence; (5) trial counsel was ineffective when trial counsel 2 failed to object to the admission of bad character evidence and the prosecution’s improper closing 3 argument, failed to investigate, interview and present the testimony of exculpatory witness Vickey 4 Simmons, and failed to object and move to exclude cell phone evidence obtained from an illegal 5 search; (6) appellate counsel and collateral review counsel were ineffective when they failed to 6 argue on direct appeal and in collateral proceedings that trial counsel had been ineffective when 7 trial counsel failed to investigate, interview and present the testimony of exculpatory witness 8 Vickey Simmons, and when trial counsel failed to object and move to exclude cell phone evidence 9 obtained from an illegal search; (7) cumulative error; and (8) habeas counsel was ineffective for 10 failing to investigate and interview alibi witness Johnathan Green and failing to obtain Mr. 11 Green’s declaration. See generally Dkt. No. 10. Liberally construed, the amended petition states 12 cognizable claims for federal habeas relief, and merits an answer from Respondent. See Zichko v. 13 Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs 14 of habeas corpus liberally). 15 CONCLUSION 16 For the foregoing reasons, the Court orders as follows. 17 1. The Court GRANTS Petitioner’s request to reopen this action. Dkt. No. 8. The 18 Court ORDERS the Clerk to VACATE the Order of Dismissal and related judgment, Dkt. Nos. 6, 19 7, and REOPEN the case. 20 2. The Court GRANTS Petitioner’s request for leave to proceed in forma pauperis. 21 Dkt. No. 8 at 6-10. 22 3. The Clerk shall serve electronically a copy of this order upon the Respondent and 23 the Respondent’s attorney, the Attorney General of the State of California, at the following email 24 address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are available via 25 the Electronic Case Filing System for the Northern District of California. The Clerk shall serve by 26 mail a copy of this order on Petitioner. 27 4. Respondent shall file with the Court and serve on Petitioner, within ninety-one 1 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 2 || based on the claim(s) found cognizable herein. Respondent shall file with the answer and serve on 3 Petitioner a copy of all portions of the state trial record that have been transcribed previously and 4 || that are relevant to a determination of the issues presented by the petition. 5 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 6 || Court and serving it on Respondent within thirty-five (35) days of the date the answer is filed. 7 5. Respondent may file, within ninety-one (91) days, a motion to dismiss on 8 || procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of 9 the Rules Governing Section 2254 Cases. If Respondent files such a motion, petitioner shall file 10 || with the Court and serve on Respondent an opposition or statement of non-opposition within 11 twenty-eight (28) days of the date the motion is filed, and Respondent shall file with the Court 12 || and serve on Petitioner a reply within fourteen (14) days of the date any opposition is filed. 5 13 6. Petitioner is reminded that all communications with the Court must be served on 14 || Respondent by mailing a true copy of the document to Respondent’s counsel. Petitioner must 15 || keep the Court informed of any change of address and must comply with the Court’s orders in a 16 || timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 3 17 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 18 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 19 7. Upon a showing of good cause, requests for a reasonable extension of time will be 20 || granted provided they are filed on or before the deadline they seek to extend. 21 This order terminates Dkt. No. 8. 22 IT IS SO ORDERED. 23 || Dated: 6/30/2023 24 Abppuered 3 bbl) 25 HAYWOOD S. GILLIAM, JR. United States District Judge 26 27 28