Cook v. Foss

Background

Timonte E. Cook, identified as a state prisoner incarcerated at Salinas Valley State Prison, filed a petition under 28 U.S.C. § 2254 seeking federal review of a conviction from Contra Costa County Superior Court. A jury convicted Cook of first- and second-degree murder and shooting at an unoccupied vehicle, and found true an enhancement for personal use of a firearm. The state trial court sentenced him to 90 years to life.

Cook appealed. The state appellate court affirmed the conviction but sent the matter back to the trial court for the limited purpose of determining whether Cook had received a Franklin hearing. The California Supreme Court denied review on January 25, 2017. Cook later filed state habeas petitions raising the claims presented in this federal case; those petitions were denied.

Claims and Initial Review

Cook asserted seven grounds for federal habeas relief: (1) the trial court failed to discharge a biased juror or conduct an adequate inquiry into the juror’s fear of retaliation; (2) police misconduct; (3) prosecutorial misconduct involving false or misleading evidence, allegedly perjured testimony, and leading questions; (4) improper admission of eyewitness-identification evidence; (5) a conviction based on false evidence or evidence obtained through misconduct or fraud; (6) ineffective assistance of appellate counsel for failing to raise claims two through five on direct appeal; and (7) cumulative error.

The court stated that, liberally construing Cook’s self-represented petition, the claims appeared cognizable under § 2254 and warranted an answer from the respondent. In a footnote, the court observed that the petition might be barred by the one-year limitations period under the Antiterrorism and Effective Death Penalty Act, but the court did not resolve that issue in this order.

Ruling and Procedure

The court denied Cook’s request to proceed without paying the filing fee as moot because he had already paid the fee. It ordered the Clerk to serve the order on Tammy Foss and her attorney, the Attorney General of California.

The court ordered Foss to file and serve an answer within 60 days, together with relevant portions of the previously transcribed state trial record. The answer must explain why the writ should not be granted. The court also allowed Foss to file a motion to dismiss on procedural grounds instead of an answer. Cook could respond to an answer within 30 days or oppose a motion to dismiss within 28 days. Judge Haywood S. Gilliam, Jr. did not decide the merits of Cook’s habeas claims, the petition’s timeliness, or whether the writ should issue. The order terminated docket entry 7.