Currie v. Lewis

Filing 4

ORDER TO SHOW CAUSE, Order denying 3 MOTION to Appoint Counsel filed by Aldridge Currie,granting 2 MOTION for Leave to Proceed in forma pauperis filed by Aldridge Currie. Signed by Judge Charles R. Breyer on 2/7/2012. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 2/8/2012)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11

ALDRIDGE CURRIE, G-44516,
Petitioner,

12
13
14
15

vs.
GREG D. LEWIS, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. C 11-5194 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2 & 3)

16
17

Petitioner, a state prisoner incarcerated at Pelican Bay State Prison

18

(PBSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

19

2254 challenging a conviction from Contra Costa County Superior Court.

20

Petitioner also seeks appointment of counsel and leave to proceed in forma

21

pauperis (IFP) under 28 U.S.C. § 1915.

22
23

BACKGROUND
A jury convicted petitioner of second degree murder, attempted robbery

24

and felon in possession of a firearm, and found true various enhancement

25

allegations. On or about November 21, 2008, petitioner was sentenced to a

26

prison term of 15 years to life plus 14 years. Petitioner unsuccessfully appealed

27

his conviction to the California Court of Appeal and the Supreme Court of

28

California. The instant federal petition followed.

1
2

DISCUSSION
A.

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

3
4

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

5

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

6

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

7

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

8

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

9

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

10

B.

Claims
Petitioner seeks federal habeas corpus relief by raising several claims,

11
12

including discriminatory use of peremptory strike, illegal search and improper

13

admission of evidence. Liberally construed, the claims appear cognizable under

14

§ 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d

15

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

16

of habeas corpus liberally).

17

C.

18

Motion for Appointment of Counsel
Petitioner's request for appointment of counsel (docket # 3) is DENIED

19

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

20

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

21

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

22

Petitioner adequately presented his claims for relief in the petition and an order to

23

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

24

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

25

counsel within discretion of district court where petitioner clearly presented

26

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

27
28

2

1

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

2

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

3

hearing is required).
CONCLUSION

4
5

For the foregoing reasons and for good cause shown,

6

1.

Petitioner's request to proceed IFP (docket # 2) is GRANTED.

7

2.

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

8

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

9

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

10
11

on petitioner.
3.

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

12

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

13

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

14

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

15

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

16

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

17

presented by the petition.

18

If petitioner wishes to respond to the answer, he shall do so by filing a

19

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

20

of the answer.

21

4.

Respondent may file a motion to dismiss on procedural grounds in

22

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

23

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

24

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

25

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

26

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

27
28

3

1
2

of receipt of any opposition.
5.

Petitioner is reminded that all communications with the court must

3

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

4

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

5

change of address.

6

SO ORDERED.

7

DATED: Feb. 8, 2012
CHARLES R. BREYER
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
G:\PRO-SE\CRB\HC.11\Currie, A.11-5194.osc.wpd

27
28

4