Garcia v. McEwen

Filing 10

ORDER REOPENING CASE, ORDER LIFTING STAY, ORDER TO SHOW CAUSE. Signed by Judge Charles R. Breyer on 6/1/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/5/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MANUEL SALVADOR GARCIA,

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Petitioner,
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vs.
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MICHAEL STAINER, Acting Warden, )
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Respondent.
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No. C 11-0160 CRB (PR)
ORDER REOPENING CASE
AND LIFTING STAY; AND
ORDER TO SHOW CAUSE
(Docket # 7 & 8)

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Petitioner, a state prisoner at the California Correctional Institution in

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Tehachapi, seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a

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conviction and sentence from Contra Costa County Superior Court. He also

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seeks appointment of counsel.

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BACKGROUND

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Following a jury trial, the jury convicted petitioner of second degree

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murder and found two firearm enhancement allegations to be true. On December

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8, 2006, the court sentenced petitioner to 40 years to life in state prison.

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Petitioner unsuccessfully appealed to the California Court of Appeal and

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the Supreme Court of California, which denied review on July 22, 2009. He then

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began seeking collateral relief from the state courts.

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On January 1, 2011, while still seeking collateral relief from the state

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courts, petitioner filed the instant federal habeas action containing four exhausted

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and two unexhausted claims. He also moved for a stay so he could finish

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exhausting his two unexhausted claims – ineffective assistance of counsel and

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denial of due process.

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On February 8, 2011, the court granted petitioner's motion for a stay and

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instructed the clerk to administratively close the case. The court explained that

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nothing further would take place in this matter until petitioner exhausts his claims

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of ineffective assistance of counsel and denial of due process, and, within 30 days

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thereafter, moves to reopen the case and lift the court's stay.

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On February 6, 2012, petitioner filed a motion to lift the court's stay,

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noting that the Supreme Court of California had denied his final two claims on

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January 18, 2012.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

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Motion to Lift Stay and Claims
Good cause appearing, petitioner's motion (docket # 7) to lift the court's

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stay is GRANTED and the clerk is instructed to reopen this case.

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/

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Petitioner seeks federal habeas corpus relief by raising six claims,

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including improper admission of evidence, ineffective assistance of counsel and

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insufficiency of the evidence. Liberally construed, the claims appear cognizable

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under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247

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F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for

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writs of habeas corpus liberally).

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C.

Petitioner's motion for appointment of counsel (docket # 8) is DENIED

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Request for Appointment of Counsel

without prejudice. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986)

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(unless an evidentiary hearing is required, the decision to appoint counsel in

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habeas corpus proceedings is within the discretion of the district court).

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Petitioner adequately presented his claims for relief in the petition (albeit with the

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assistance of another prisoner) and an order to show cause is issuing. Accord

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Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no

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background in law, denial of appointment of counsel within discretion of district

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court where petitioner clearly presented issues in petition and accompanying

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memorandum). The court will appoint counsel on its own motion if an

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evidentiary hearing is later required. See Knaubert, 791 F.2d at 728

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(appointment of counsel mandatory if evidentiary hearing is required).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

The clerk shall reopen this matter and serve a copy of this order,

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and the petition and all attachments thereto, on respondent and respondent's

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attorney, the Attorney General of the State of California. The clerk also shall

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serve a copy of this order on petitioner.

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Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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If 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.
3.

Respondent may file a motion to dismiss on procedural grounds in

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lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner must serve and file an opposition or statement of non-opposition not

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more than 28 days after the motion is served and filed, and respondent must serve

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and file a reply to an opposition not more than 14 days after the opposition is

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served and filed.

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4.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent's

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED: June 1, 2012
CHARLES R. BREYER
United States District Judge

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