Pangilinan v. Lewis

Filing 7

ORDER TO SHOW CAUSE, DENYING 2 Request for Appointment of Counsel, DENYING AS MOOT 6 Request to Proceed in forma pauperis. Signed by Judge Thelton E. Henderson on 04/25/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/27/2012)

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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 United States District Court For the Northern District of California 10 11 12 13 14 No. C-12-0194 TEH (PR) ALFREDO G. PANGILINAN, Petitioner, ORDER TO SHOW CAUSE, DENYING REQUEST FOR APPOINTMENT OF COUNSEL AND DENYING AS MOOT REQUEST TO PROCEED IN FORMA PAUPERIS v. GREG LEWIS, Warden, 15 Respondent. 16 / Doc. ##2, 6 17 18 Petitioner, a state prisoner incarcerated at Pelican Bay 19 State Prison in Crescent City, California, has filed a pro se 20 Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 21 challenging a judgment of conviction from Contra Costa County 22 Superior Court. 23 24 Doc. #1. I According to the Petition, in 2009, Petitioner was 25 convicted by jury of two counts of murder, assault with a deadly 26 weapon, and the jury’s finding true deadly weapon use, and multiple 27 murder special circumstance allegations. 28 sentenced to consecutive terms of life without possibility of parole Doc. #1 at 32. He was 1 for two homicides, a determinate term of 3 years for a conviction of 2 assault, and consecutive determinate terms of one year each of use 3 of a deadly weapon in each of the two homicides, as well as various 4 fines and court fees. 5 his conviction to the state appellate courts (id. at 32-40)and to 6 the California Supreme Court (id. at 3). 7 Petition for a Writ of Habeas Corpus followed. Id. at 7. 8 9 Petitioner unsuccessfully appealed The instant federal II This Court may entertain a petition for a writ of habeas United States District Court For the Northern District of California 10 corpus “in behalf of a person in custody pursuant to the judgment of 11 a State court only on the ground that he is in custody in violation 12 of the Constitution or laws or treaties of the United States.” 13 U.S.C. § 2254(a). 14 directing the respondent to show cause why the writ should not be 15 granted, unless it appears from the application that the applicant 16 or person detained is not entitled thereto.” 17 28 It shall “award the writ or issue an order Id. § 2243. Petitioner seeks federal habeas corpus relief by alleging 18 that there was insufficient evidence to support his conviction for 19 the murder of Virgina Farley. 20 Liberally construed, Petitioner’s claim appears cognizable 21 under 28 U.S.C. § 2254 and merits an Answer from Respondent. 22 Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts 23 must construe pro se petitions for writs of habeas corpus 24 liberally). 25 26 27 28 See III Petitioner seeks leave to proceed in forma pauperis, (Doc. #6), which the Court DENIES AS MOOT. 2 The Court has already granted 1 Petitioner in forma pauperis status. 2 Doc. #5. Petitioner also seeks appointment of counsel (Doc. #2), 3 which the Court DENIES without prejudice. 4 Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (unless an evidentiary 5 hearing is required, the decision to appoint counsel in habeas 6 corpus proceedings is within the discretion of the district court). 7 Petitioner clearly presented his claim for relief in his petition 8 and an Order to Show Cause has issued. 9 complex. See Knaubert v. Nor is the issue presented Accordingly, the interests of justice do not require United States District Court For the Northern District of California 10 appointment of counsel at this time. 11 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no 12 background in law, denial of appointment of counsel within 13 discretion of district court where petitioner clearly presented 14 issues in petition and accompanying memorandum). 15 Accord Bashor v. Risley, 730 IV 16 For the foregoing reasons and for good cause shown, 17 1. The Clerk shall serve by certified mail a copy of 18 this Order and the Petition, and all attachments thereto (i.e., Doc. 19 #1), on Respondent and Respondent’s attorney, the Attorney General 20 of the State of California. 21 this Order on Petitioner. 22 2. The Clerk also shall serve a copy of Respondent shall file with the Court and serve on 23 Petitioner, within sixty (60) days of the issuance of this Order, an 24 Answer conforming in all respects to Rule 5 of the Rules Governing 25 Section 2254 Cases, showing cause why a writ of habeas corpus should 26 not be granted. 27 Petitioner a copy of all portions of the state trial record that 28 have been transcribed previously and that are relevant to a Respondent shall file with the Answer and serve on 3 1 determination of the issues presented by the Petition. 2 If Petitioner wishes to respond to the Answer, he shall do 3 so by filing a Traverse with the Court and serving it on Respondent 4 within thirty (30) days of his receipt of the Answer. 5 3. In lieu of an Answer, Respondent may file a Motion to 6 Dismiss on procedural grounds, as set forth in the Advisory 7 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 8 If Respondent files such a motion, Petitioner shall file with the 9 Court and serve on Respondent an Opposition or Statement of United States District Court For the Northern District of California 10 Non-Opposition within thirty (30) days of receipt of the motion, and 11 Respondent shall file with the Court and serve on Petitioner a Reply 12 within fifteen (15) days of receipt of any Opposition. 13 4. Petitioner is reminded that all communications with 14 the Court must be served on Respondent by mailing a true copy of the 15 document to Respondent’s counsel. 16 Court and all parties informed of any change of address. 17 Petitioner also must keep the IT IS SO ORDERED. 18 19 DATED 04/25/2012 THELTON E. HENDERSON United States District Judge 20 21 22 23 24 G:\PRO-SE\TEH\HC.12\Pangilinan-12-0194-osc.wpd 25 26 27 28 4

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