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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 MILAN PAKES, J-30733, Petitioner, 12 13 14 15 vs. P. D. BRAZELTON, Acting Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 11-5284 CRB (PR) ORDER TO SHOW CAUSE (Docket # 2 & 3) 16 17 Petitioner, a state prisoner incarcerated at Pleasant Valley State Prison 18 (PVSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 19 2254 challenging a conviction and sentence from Santa Clara County Superior 20 Court. He also seeks appointment of counsel and leave to proceed in forma 21 pauperis (IFP) under 28 U.S.C. § 1915. 22 23 BACKGROUND Petitioner was convicted by a jury of child endangerment, evading a police 24 officer, and hit and run causing property damage. In a bifurcated proceeding, 25 petitioner admitted the allegations that he had two prior strike convictions and 26 served a prior prison term. On February 29, 2008, the trial court sentenced 27 petitioner to an indeterminate prison term of 25 years to life to run consecutive to 28 a determinate term of four years. 1 On October 16, 2009, the California Court of Appeal concluded that the 2 four-year term should have been stayed, and reversed the judgment and remanded 3 for resentencing. It also denied petitioner's accompanying application for habeas 4 corpus relief. 5 On February 18, 2010, the Supreme Court of California denied review. 6 On August 9, 2010, the trial court resentenced petitioner to an 7 indeterminate prison term 25 years to life. 8 9 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 10 affirmed the judgment. It also denied petitioner's accompanying application for 11 habeas corpus relief. 12 On August 31, 2011, the Supreme Court of California denied review. 13 On October 31, 2011, petitioner filed the instant federal petition. 14 15 DISCUSSION A. Standard of Review This court may entertain a petition for a writ of habeas corpus "in behalf 16 17 of a person in custody pursuant to the judgment of a State court only on the 18 ground that he is in custody in violation of the Constitution or laws or treaties of 19 the United States." 28 U.S.C. § 2254(a). 20 It shall "award the writ or issue an order directing the respondent to show 21 cause why the writ should not be granted, unless it appears from the application 22 that the applicant or person detained is not entitled thereto." Id. § 2243. 23 B. 24 Claims Petitioner seeks federal habeas corpus relief by raising several claims, 25 including ineffective assistance of counsel, suppression of evidence, false 26 testimony and instructional error. Liberally construed, the claims appear 27 28 2 1 cognizable under § 2254 and merit an answer from respondent. See Zichko v. 2 Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se 3 petitions for writs of habeas corpus liberally). 4 C. 5 Motion for Appointment of Counsel Petitioner's request for appointment of counsel (docket # 3) is DENIED 6 without prejudice. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) 7 (unless an evidentiary hearing is required, the decision to appoint counsel in 8 habeas corpus proceedings is within the discretion of the district court). 9 Petitioner adequately presented his claims for relief in the petition and an order to 10 show cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 11 1984) (although petitioner had no background in law, denial of appointment of 12 counsel within discretion of district court where petitioner clearly presented 13 issues in petition and accompanying memorandum). The court will appoint 14 counsel on its own motion if an evidentiary hearing is later required. See 15 Knaubert, 791 F.2d at 728 (appointment of counsel mandatory if evidentiary 16 hearing is required). 17 CONCLUSION 18 For the foregoing reasons and for good cause shown, 19 1. Petitioner's request to proceed IFP (docket # 2) is GRANTED. 20 2. The clerk shall serve a copy of this order and the petition and all 21 attachments thereto on respondent and respondent's attorney, the Attorney 22 General of the State of California. The clerk also shall serve a copy of this order 23 on petitioner. 24 3. Respondent shall file with the court and serve on petitioner, within 25 60 days of the issuance of this order, an answer conforming in all respects to Rule 26 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of 27 28 3 1 habeas corpus should not be granted. Respondent shall file with the answer and 2 serve on petitioner a copy of all portions of the state trial record that have been 3 transcribed previously and that are relevant to a determination of the issues 4 presented by the petition. 5 If petitioner wishes to respond to the answer, he shall do so by filing a 6 traverse with the court and serving it on respondent within 30 days of his receipt 7 of the answer. 8 9 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 10 Rules Governing Section 2254 Cases. If respondent files such a motion, 11 petitioner shall file with the court and serve on respondent an opposition or 12 statement of non-opposition within 30 days of receipt of the motion, and 13 respondent shall file with the court and serve on petitioner a reply within 15 days 14 of receipt of any opposition. 15 5. Petitioner is reminded that all communications with the court must 16 be served on respondent by mailing a true copy of the document to respondent’s 17 counsel. Petitioner must also keep the court and all parties informed of any 18 change of address. 19 SO ORDERED. 20 DATED: Feb. 7, 2012 CHARLES R. BREYER United States District Judge 21 22 23 24 25 26 G:\PRO-SE\CRB\HC.11\Pakes, M.11-5284.osc.wpd 27 28 4

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