Filed: Oct. 28, 2015
Latest Update: Oct. 28, 2015
Summary: ORDER OF SERVICE Re: Dkt. No. 3 NATHANAEL M. COUSINS , Magistrate Judge . Petitioner Jacob Christian Mullan, a state prisoner incarcerated at California State Prison, Solano, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. I. BACKGROUND Petitioner was convicted by a jury of rape in the Alameda Superior Court of the State of California. On January 9, 2012, he was sentenced to 16 years in state prison; six years for the underlying offense and ten years due to
Summary: ORDER OF SERVICE Re: Dkt. No. 3 NATHANAEL M. COUSINS , Magistrate Judge . Petitioner Jacob Christian Mullan, a state prisoner incarcerated at California State Prison, Solano, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. I. BACKGROUND Petitioner was convicted by a jury of rape in the Alameda Superior Court of the State of California. On January 9, 2012, he was sentenced to 16 years in state prison; six years for the underlying offense and ten years due to ..
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ORDER OF SERVICE
Re: Dkt. No. 3
NATHANAEL M. COUSINS, Magistrate Judge.
Petitioner Jacob Christian Mullan, a state prisoner incarcerated at California State Prison, Solano, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
I. BACKGROUND
Petitioner was convicted by a jury of rape in the Alameda Superior Court of the State of California. On January 9, 2012, he was sentenced to 16 years in state prison; six years for the underlying offense and ten years due to a gang enhancement. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California, which on February 11, 2014, denied review of a petition allegedly raising the same claims raised here.
II. DISCUSSION
A. Legal Standard
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
B. Petitioner's Legal Claims
Petitioner seeks federal habeas corpus relief by raising the following claims: that he was denied his right to a fair trial by the misjoinder of defendants; that the evidence was insufficient to sustain the true findings on the gang enhancements; that he was prejudiced by the admission of prison gang evidence, by evidence of other gang "contacts," and by expert opinion evidence on his specific intent; and that his trial was rendered fundamentally unfair by the cumulative effect of the errors at trial. Liberally construed, the claims appear colorable under 28 U.S.C. § 2254 and merit an answer from respondent.
III. CONCLUSION
For the foregoing reasons and for good cause shown:
1. The clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto upon respondent. The clerk shall also serve a copy of this order on petitioner.
2. Respondent shall file with the court and serve on petitioner, within 60 days of the date of this order, an answer showing why a writ of habeas corpus should not be issued (or -an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued). Respondent shall file with the answer and serve on petitioner a copy of all portions of the administrative record that are relevant to a determination of the issues presented by the petition.
3. If the petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 30 days of his receipt of the answer.
4. Respondent shall file a consent or declination to magistrate judge jurisdiction within 14 days.
IT IS SO ORDERED.
JACOB CHRISTIAN MULLAN,
Case No. 15-cv-01003-NC
Plaintiff,
v. CONSENT OR DECLINATION TO
MAGISTRATE JUDGE
ERIC ARNOLD, JURISDICTION
Defendant.
INSTRUCTIONS: Please indicate below by checking one of the two boxes whether you (if you are the party) or the party you represent (if you are an attorney in the case) choose(s) to consent or decline magistrate judge jurisdiction in this matter. Sign this form below your selection.
( ) Consent to Magistrate Judge Jurisdiction
In accordance with the provisions of 28 U.S.C. § 636(c), I voluntarily consent to have a United States magistrate judge conduct all further proceedings in this case, including trial and entry of final judgment. I understand that appeal from the judgment shall be taken directly to the United States Court of Appeals for the Ninth Circuit.
OR
( ) Decline Magistrate Judge Jurisdiction
In accordance with the provisions of 28 U.S.C. § 636(c), I decline to have a United States magistrate judge conduct all further proceedings in this case and I hereby request that this case be reassigned to a United States district judge.
DATE: NAME:
COUNSEL FOR:
(OR "PRO SE:)
__________________________________
Signature
