Ward v. Virga

Filing 5

ORDER TO SHOW CAUSE and denying 2 MOTION to Appoint Counsel filed by Michael W. Ward; granting 4 MOTION for Leave to Proceed in forma pauperis filed by Michael W. Ward.. Signed by Judge Charles R. Breyer on 5/6/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 5/11/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL W. WARD, H-26802,
Petitioner,

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vs.
TIM VIRGA, Acting Warden,
Respondent.

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No. C 11-1714 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2 & 4)

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Petitioner, a state prisoner incarcerated at California State Prison,

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Saramento, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C.

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§ 2254 challenging a conviction and sentence from Santa Clara County Superior

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Court. He also seeks appointment of counsel and leave to proceed in forma

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pauperis under 28 U.S.C. § 1915.

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BACKGROUND

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Petitioner was convicted by a jury of possession of a firearm by a person

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convicted of a violent felony, possession of ammunition by a person prohibited

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from possessing a firearm and possession for sale of marijuana. The trial court

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also found true allegations that petitioner had suffered three prior strike

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convictions and had served two prior prison terms. On August 31, 2007,

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petitioner was sentenced to a total term of 52 years to life in state prison.

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Petitioner unsuccessfully appealed his conviction and sentence to the

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California Court of Appeal and the Supreme Court of California, and also

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unsuccessfully sought collateral relief from the state courts. On June 9, 2010, the

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Supreme Court of California denied his final state petition for a writ of habeas

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corpus. The instant federal petition for a writ of habeas corpus followed.

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DISCUSSION
A.

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

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Standard of Review

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.

Claims
Petitioner seeks federal habeas corpus relief by raising the following

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claims: (1) improper admission of prior convictions; (2) improper imposition of

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consecutive sentences without a jury finding; (3) ineffective assistance of

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counsel; (4) prejudicial abuse of discretion; and (5) cumulative error. Liberally

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construed, the claims appear minimally cognizable under § 2254 and merit an

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answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir.

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2001) (federal courts must construe pro se petitions for writs of habeas corpus

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liberally).

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C.

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Motion for Appointment of Counsel
Petitioner's request for appointment of counsel (docket # 2) is DENIED

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 and an order to

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show cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.

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1984) (although petitioner had no background in law, denial of appointment of

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counsel within discretion of district court where petitioner clearly presented

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issues in petition and accompanying memorandum). The court will appoint

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counsel on its own motion if an evidentiary hearing is later required. See

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Knaubert, 791 F.2d at 728 (appointment of counsel mandatory if evidentiary

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hearing is required).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 4) is

GRANTED.

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2.

The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

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

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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4.

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 shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 30 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 15 days

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of receipt of any opposition.
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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: May 6, 2011
CHARLES R. BREYER
United States District Judge

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