Taylor v. Barnes

Filing 5

ORDER TO SHOW CAUSE, Motion granted: 2 MOTION for Leave to Proceed in forma pauperis filed by Kenneth Taylor, Motion Denied without prejudice 4 MOTION to Appoint Counsel filed by Kenneth Taylor. Habeas Answer due by 8/6/2012.. Signed by Judge Charles R. Breyer on 6/1/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/5/2012)

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 13 KENNETH TAYLOR, AB7038, Petitioner, 14 15 16 17 vs. VIMAL SINGH, Acting Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 12-0376 CRB (PR) ORDER TO SHOW CAUSE (Docket # 2 & 4) 18 19 Petitioner, a state prisoner at the California Medical Facility in Vacaville 20 (CMF), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 21 2254 challenging a conviction from Alameda County Superior Court. He also 22 seeks appointment of counsel and leave to proceed in forma pauperis under 28 23 U.S.C. § 1915. 24 25 BACKGROUND Petitioner was convicted by a jury of two counts of second degree robbery. 26 In a bifurcated proceeding, the court found true allegations that petitioner had 27 suffered nine prior convictions, including a prior felony strike conviction. On 28 December 4, 2009, petitioner was sentenced to 15 years in state prison. 1 Petitioner unsuccessfully appealed his conviction to, and unsuccessfully 2 sought habeas relief from, the California Court of Appeal. The Supreme Court of 3 California denied review and, on November 16, 2011, denied his final petitions 4 for state habeas relief. The instant federal petition followed. 5 6 DISCUSSION A. Standard of Review This court may entertain a petition for a writ of habeas corpus "in behalf 7 8 of a person in custody pursuant to the judgment of a State court only on the 9 ground that he is in custody in violation of the Constitution or laws or treaties of 10 the United States." 28 U.S.C. § 2254(a). 11 It shall "award the writ or issue an order directing the respondent to show 12 cause why the writ should not be granted, unless it appears from the application 13 that the applicant or person detained is not entitled thereto." Id. § 2243. 14 B. Claims Petitioner seeks federal habeas corpus relief by raising four claims: (1) 15 16 suppression of material evidence; (2) improper admission of out-of-court 17 identification; (3) instructional error; and (4) ineffective assistance of counsel. 18 Liberally construed, the claims appear cognizable under § 2254 and merit an 19 answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 20 2001) (federal courts must construe pro se petitions for writs of habeas corpus 21 liberally). 22 C. 23 Request for Appointment of Counsel Petitioner's motion for appointment of counsel (docket # 4) is DENIED 24 without prejudice. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) 25 (unless an evidentiary hearing is required, the decision to appoint counsel in 26 habeas corpus proceedings is within the discretion of the district court). 27 28 2 1 Petitioner adequately presented his claims for relief in the petition and an order to 2 show cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 3 1984) (although petitioner had no background in law, denial of appointment of 4 counsel within discretion of district court where petitioner clearly presented 5 issues in petition and accompanying memorandum). The court will appoint 6 counsel on its own motion if an evidentiary hearing is later required. See 7 Knaubert, 791 F.2d at 728 (appointment of counsel mandatory if evidentiary 8 hearing is required). CONCLUSION 9 10 For the foregoing reasons and for good cause shown, 11 1. 12 13 Petitioner's request to proceed in forma pauperis (docket # 2) is GRANTED. 2. The clerk shall serve a copy of this order and the petition and all 14 attachments thereto on respondent and respondent's attorney, the Attorney 15 General of the State of California. The clerk also shall serve a copy of this order 16 on petitioner. 17 3. Respondent shall file with the court and serve on petitioner, within 18 60 days of the issuance of this order, an answer conforming in all respects to Rule 19 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of 20 habeas corpus should not be granted. Respondent shall file with the answer and 21 serve on petitioner a copy of all portions of the state trial record that have been 22 transcribed previously and that are relevant to a determination of the issues 23 presented by the petition. 24 If petitioner wishes to respond to the answer, he shall do so by filing a 25 traverse with the court and serving it on respondent within 30 days of his receipt 26 of the answer. 27 28 3 1 4. Respondent may file a motion to dismiss on procedural grounds in 2 lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 3 Rules Governing Section 2254 Cases. If respondent files such a motion, 4 petitioner must serve and file an opposition or statement of non-opposition not 5 more than 28 days after the motion is served and filed, and respondent must serve 6 and file a reply to an opposition not more than 14 days after the opposition is 7 served and filed. 8 5. 9 Petitioner is reminded that all communications with the court must be served on respondent by mailing a true copy of the document to respondent's 10 counsel. Petitioner must also keep the court and all parties informed of any 11 change of address. 12 SO ORDERED. 13 DATED: June 1, 2012 CHARLES R. BREYER United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\HC.12\Taylor, K.12-0376.osc.wpd 27 28 4

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