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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MICHAEL JOHNSON,

Plaintiff,

v.

CYNTHIA Y. TAMPKINS,

Defendant.

Case No. 17-cv-00385-JCS 

ORDER TO SHOW CAUSE

I. INTRODUCTION

Petitioner Michael Johnson seeks federal habeas relief under 28 U.S.C. § 2254 from his 

state conviction. The petition for such relief is here for review under 28 U.S.C. § 2243 and Rule 4 

of the Rules Governing Section 2254 Cases. Respondent Cynthia Tamkins shall file a response to 

the petition on or before August 14, 2017.1

II. BACKGROUND

On July 16, 2014, the Superior Court of California, County of Napa, sentenced Johnson to 

twelve years imprisonment after he was found guilty of one count of forcible rape (Cal. Penal 

Code § 261, subd. (a)(2)), one count of misdemeanor battery (Cal. Penal Code § 242) as a lesser 

included offense; two counts of forcible penetration (Cal. Penal Code § 289, subd. (a)(1)(A)) and 

one count of false imprisonment (Cal. Penal Code § 236). He appealed his conviction to the 

California Court of Appeal, First Appellate District, Division Five. The Court of Appeal affirmed 

the superior court’s judgment on August 25, 2015. The California Supreme Court denied review 

on October 28, 2015. The instant petition was filed on January 25, 2017, within a year of the date 

 

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Petitioner, the only party yet to appear in this action, has consented to the jurisdiction of the 

undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).
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United States District Court

Northern District of California

on which the 90-day statutory period for filing a petition for writ of certiorari from the United 

States Supreme Court expired.

Johnson is presently in custody at the California Rehabilitation Center, in Norco, 

California.

III. ANALYSIS

This Court may entertain a petition for writ of habeas corpus on 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). A 

district court considering an application for a writ of habeas corpus 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). 

As grounds for federal habeas relief, Johnson asserts that the trial court violated his right to 

Due Process under the Fourteenth Amendment and his right to a trial by jury by instructing the 

jury of what he contends is a mandatory, conclusive presumption that the existence of a dating 

relationship between petitioner and the complainant was not sufficient to show consent. Petitioner 

contends the instruction unconstitutionally lowered the prosecution’s burden of proof and 

constitutes a form of error under Sandstrom v. Montana, 442 U.S. 510 (1979). When liberally 

construed, these claims are cognizable in a federal habeas corpus action. 

IV. CONCLUSION

1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, and a 

magistrate judge jurisdiction consent or declination form on Respondent and Respondent’s 

counsel, the Attorney General for the State of California. 

2. No later than August 14, 2017, Respondent shall file 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 granted based on Johnson’s claims. Respondent shall file with the 
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United States District Court

Northern District of California

answer all portions of the state trial record that previously have been transcribed and that are 

relevant to a determination of the issues presented by the petition. 

3. If Johnson wishes to respond to the answer, he shall do so by filing a traverse with the 

Court within thirty (30) days of the date the answer is filed. 

4. In lieu of an answer, Respondent may file, no later than August 14, 2017, a motion to 

dismiss on procedural grounds, as set forth in the Advisory Committee Notes to Rule 4 of the 

Rules Governing Section 2254 Cases. If Respondent files such a motion, Johnson shall file an 

opposition or statement of non-opposition within thirty (30) days of the date the motion is filed, 

and Respondent shall file a reply within fifteen (15) days of the date any opposition is filed.

5. Upon a showing of good cause, requests for a reasonable extension of time will be granted 

provided they are filed on or before the deadline they seek to extend.

IT IS SO ORDERED.

Dated: May 10, 2017

______________________________________

JOSEPH C. SPERO

Chief Magistrate Judge