Carter v. Asuncion

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 3/8/2018 APPOINTING the Federal Defender to represent petitioner. The Clerk shall serve a copy of the petition and this order on the Federal Defender. A Status Conference is set for 5/16/2018 at 10: 00 AM in Courtroom 26 (AC) before Magistrate Judge Allison Claire. Seven days prior to the conference, the parties shall file a joint status report, which addresses the matters listed within this order. The Clerk shall serve a copy of this order, the form Consent to Proceed Before a United States Magistrate Judge, and a copy of the petition on Tami Krenzin, Deputy AG. (cc: FD-Habeas Unit, Tami Krenzin)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEWAYNE CARTER,

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Petitioner,

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No. 2:18-cv-0078 AC P

v.

ORDER

DEBBIE ASUNCION, Warden,1

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.2
Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).
The petition for writ of habeas corpus challenges petitioner’s May 2014 murder

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A federal petition for writ of habeas corpus must name as respondent the state officer having
custody of the petitioner. See 28 U.S.C. § 2254; Rule 2(a) of the Rules Governing Section 2254
Cases in the United States District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004);
Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, Debbie
Asuncion, Warden of California State Prison, Los Angeles County (CSP-LAC), petitioner’s place
of incarceration, is substituted as respondent herein.
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Petitioner’s application to proceed in forma pauperis was included with his petition. See ECF
No. 1 at 16-8. This court’s subsequent order directing petitioner to submit such application or
pay the filing fee, ECF No. 8, is therefore inapplicable.

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conviction and sentence to life imprisonment without the possibility of parole entered by the

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Sutter County Superior Court. Petitioner entered a guilty plea resulting, inter alia, in the

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prosecution dropping its pursuit of the death penalty. Petitioner now contends that his plea was

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not entered knowingly, intelligently or voluntarily. Petitioner asserts that the trial court failed to

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adequately consider petitioner’s significant disabilities, including his TABE3 score of 1.9,

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requiring that others use simple language, and read and speak slowly, when communicating with

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petitioner. See ECF No. 1 at 5-6, 21. In considering this claim, the California Court of Appeal,

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Third Appellate District affirmed petitioner’s conviction, but noted that the prosecution had not

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completed its expert report regarding petitioner’s intellectual disability status before petitioner

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entered his plea. See People v. Carter, 2016 WL 3411024, 2016 Cal. App. Unpub. LEXIS 4324

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(Cal. App. June 14, 2016); petition for review denied August 24, 2016.

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In an abundance of caution, the undersigned has reconsidered petitioner’s request for

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appointment of counsel at this early stage of the proceedings. See ECF Nos. 7, 9. In light of the

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complexity of the legal and factual issues presented and the consequences involved in this case,

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the court determines that the interests of justice require appointment of counsel. See 18 U.S.C. §

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3006A(a)(2)(B); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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Additionally, since petitioner may be entitled to relief in this habeas corpus action, the

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undersigned will direct the Clerk of the Court to serve respondent with the petition. At this time,

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the undersigned will not require respondent to file a response the petition. Instead, the court will

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set this matter for a status conference.

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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 petition (ECF No. 1) and this

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order on the Federal Defender, Attention: Habeas Appointment.

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3. Petitioner’s appointed counsel shall contact the Clerk’s Office to make arrangements
for copies of documents in the file.

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TABE is the standardized Test of Adult Basic Education.
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4. A status conference is set for May 16, 2018, at 10:00 a.m. in Courtroom 26.

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5. All parties shall appear at the status conference by counsel, either in person or

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telephonically if arrangements are timely made with the undersigned’s Courtroom Deputy,

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Valerie Callen, at 916-930-4199.

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6. Seven (7) days prior to the conference, the parties shall file a joint status report, which
addresses the following matters:

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a. Whether petitioner will stand on the existing petition.

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b. Whether the parties anticipate filing any motions.

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c. Whether the parties anticipate a need to conduct discovery.

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d. Whether the parties anticipate a need for an evidentiary hearing.

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7. The Clerk of the Court shall serve a copy of this order, the form Consent to Proceed

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Before a United States Magistrate Judge, and a copy of the petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 on Tami Krenzin, Supervising Deputy Attorney General.

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IT IS SO ORDERED.
DATED: March 8, 2018

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