Pakes v. Trimble

Filing 5

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

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MILAN PAKES, J-30733,
Petitioner,

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vs.
P. D. BRAZELTON, Acting Warden,
Respondent.

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No. C 11-5284 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2 & 3)

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Petitioner, a state prisoner incarcerated at Pleasant Valley State Prison

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(PVSP), 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 (IFP) under 28 U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of child endangerment, evading a police

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officer, and hit and run causing property damage. In a bifurcated proceeding,

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petitioner admitted the allegations that he had two prior strike convictions and

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served a prior prison term. On February 29, 2008, the trial court sentenced

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petitioner to an indeterminate prison term of 25 years to life to run consecutive to

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a determinate term of four years.

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On October 16, 2009, the California Court of Appeal concluded that the

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four-year term should have been stayed, and reversed the judgment and remanded

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for resentencing. It also denied petitioner's accompanying application for habeas

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corpus relief.

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On February 18, 2010, the Supreme Court of California denied review.

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On August 9, 2010, the trial court resentenced petitioner to an

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indeterminate prison term 25 years to life.

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On May 25, 2011, the California Court of Appeal modified the abstract of
judgment to reflect that the four-year term had been stayed and otherwise

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affirmed the judgment. It also denied petitioner's accompanying application for

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habeas corpus relief.

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On August 31, 2011, the Supreme Court of California denied review.

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On October 31, 2011, petitioner filed the instant federal petition.

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DISCUSSION
A.

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

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including ineffective assistance of counsel, suppression of evidence, false

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testimony and instructional error. Liberally construed, the claims appear

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cognizable under § 2254 and merit an answer from respondent. See Zichko v.

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Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se

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petitions for writs of habeas corpus liberally).

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C.

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

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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).

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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

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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5.

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: Feb. 7, 2012
CHARLES R. BREYER
United States District Judge

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