Rosales Aniceto v. Foulk

Filing 3

ORDER signed by Magistrate Judge Kendall J. Newman on 9/9/2013 APPOINTING the Federal Defender to represent petitioner; the Clerk shall serve a copy of the 9/3/2013 motion and this order on David M. Porter; counsel shall file a petition for writ of h abeas corpus no later than 30 days, and advise the court whether additional time is required prior to service on respondent; petitioner shall submit, within 30 days, an affidavit to proceed ifp or the $5.00 filing fee; and the Clerk shall send petitioner an ifp application at his address of record in Susanville, CA. (cc: David Porter) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISMAEL ROSALES ANICETO,

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No. 2:13-cv-1819 KJN P

Petitioner,
v.

ORDER

WARDEN FOULK,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel. On September 3, 2013,

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petitioner, assisted by another inmate, filed a request for appointment of counsel. Petitioner

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claims that he suffers from a language barrier because he cannot speak English. Petitioner speaks

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only Spanish. Petitioner did not attend school in the United States, and has had no legal studies in

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or outside prison. Although petitioner can access the law library, all of the materials are written

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in English, which petitioner cannot read, and the inmates who could help petitioner with his case

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cannot speak Spanish. Petitioner states that his language barrier prevents him from gaining any

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understanding of the legal system to help himself, and prevents him from filing his federal

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petition.

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On March 4, 2011, petitioner was convicted of attempted murder, allowing another to

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shoot from a car, active participation in a criminal street gang, and assault with a firearm, and

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various enhancements were found true. (ECF No. 1 at 2.) On September 1, 2011, petitioner was
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sentenced on count four to the middle term of three years, plus ten years for the gang

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enhancement, and four years for the gun enhancement. (ECF No. 1 at 21.) Petitioner was then

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sentenced to a consecutive term on count one to life in prison, with a minimum period of parole

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of 7 years, plus twenty years for the gun enhancement. No punishment was imposed for the gun

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enhancement. Sentencing for counts two and three were stayed. (Id.)

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Petitioner filed an appeal in the California Court of Appeal for the Third Appellate

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District, raising four claims: 1) introduction of evidence that petitioner claimed a gang during the

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booking interview violated his constitutional rights against self-incrimination and to due process

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of law; 2) the natural and probable consequence theory of aiding and abetting liability is

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inapplicable because there is no evidence showing that the actual shooter (Paniagua) participated

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in the target offense of assault; 3) there was insufficient evidence to support a finding that the

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attempted murder was the natural and probable consequence of the earlier assault; and 4) the trial

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court erred by imposing two enhancements for a single criminal event. (ECF No. 1 at 24 - 65.)

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The Court of Appeals found that the trial court erred in imposing two enhancements for

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the same criminal offense; thus, one enhancement should be stricken, and the case was remanded

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for re-sentencing. People v. Aniceto, 2013 WL 1174562 (Cal. App. 3 Dist., March 22, 2013).

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The Court of Appeals affirmed petitioner’s conviction in all other respects.
Petitioner’s filing does not reflect how or whether his sentence was revised by the San

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Joaquin County Superior Court following petitioner’s appeal.

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Petitioner filed a petition for review in the California Supreme Court, which was denied
on June 12, 2013. (ECF No. 1 at 69.)

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Here, petitioner seeks to file an application for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Petitioner has not filed a petition or paid the filing fee or submitted an application

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to proceed in forma pauperis. In order to commence an action, petitioner must file a petition for

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writ of habeas corpus as required by Rule 3 of the Rules Governing Section 2254 cases, and

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petitioner must either pay the required filing fee or file an application requesting leave to proceed

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in forma pauperis. See 28 U.S.C. §§ 1914(a), 1915(a).

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However, in light of the complexity of the legal issues involved, as well as petitioner’s

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unique circumstances, the court has determined that the interests of justice require appointment of

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counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th

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Cir. 1983).

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Inasmuch as there is no petition on file, and the statute of limitations period continues to

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run,1 counsel shall file a petition for writ of habeas corpus forthwith, but in no event later than

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thirty days from the date of this order, and advise the court whether additional time is required,

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i.e., to seek leave to amend petitioner’s claims, prior to service on respondent. The undersigned

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expressly makes no finding as to the timeliness of petitioner’s federal petition, which has not yet

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been filed. The Clerk of the Court is directed to send petitioner an application to proceed in

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forma pauperis, which petitioner shall complete and file within thirty days.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Federal Defender is appointed to represent petitioner.

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2. The Clerk of the Court is directed to serve a copy of the September 3, 2013 motion and

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this order on David Porter, Assistant Federal Defender.

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3. Counsel shall file a petition for writ of habeas corpus no later than thirty days from the

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date of this order, and advise the court whether additional time is required prior to service on

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respondent.

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4. Petitioner shall submit, within thirty days from the date of this order, an affidavit in

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support of his request to proceed in forma pauperis on the form provided, or the $5.00 filing fee.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to this action,
and imposes a one year statute of limitations on the filing of federal habeas petitions. 28 U.S.C. §
2244. The AEDPA contains no statutory tolling provision for the pendency of a federal civil
rights lawsuit. Indeed, the filing of a federal habeas petition does not toll the limitations period
under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
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5. The Clerk of the Court is directed to send petitioner an Application to Proceed In

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Forma Pauperis By a Prisoner, at his address of record in Susanville, California.

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Dated: September 9, 2013

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anic1819..110a

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