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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KENNETH TAYLOR, AB7038,
Petitioner,

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vs.
VIMAL SINGH, Acting Warden,
Respondent.

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No. C 12-0376 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2 & 4)

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Petitioner, a state prisoner at the California Medical Facility in Vacaville

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(CMF), 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 from Alameda County Superior Court. He also

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seeks appointment of counsel and leave to proceed in forma pauperis under 28

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U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of two counts of second degree robbery.

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In a bifurcated proceeding, the court found true allegations that petitioner had

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suffered nine prior convictions, including a prior felony strike conviction. On

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December 4, 2009, petitioner was sentenced to 15 years in state prison.

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Petitioner unsuccessfully appealed his conviction to, and unsuccessfully

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sought habeas relief from, the California Court of Appeal. The Supreme Court of

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California denied review and, on November 16, 2011, denied his final petitions

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for state habeas relief. The instant federal petition followed.

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DISCUSSION
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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.

Claims
Petitioner seeks federal habeas corpus relief by raising four claims: (1)

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suppression of material evidence; (2) improper admission of out-of-court

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identification; (3) instructional error; and (4) ineffective assistance of counsel.

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Liberally construed, the claims appear cognizable under § 2254 and merit an

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answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir.

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2001) (federal courts must construe pro se petitions for writs of habeas corpus

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liberally).

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C.

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Request for Appointment of Counsel
Petitioner's motion for appointment of counsel (docket # 4) 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).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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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

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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

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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 must serve and file an opposition or statement of non-opposition not

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more than 28 days after the motion is served and filed, and respondent must serve

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and file a reply to an opposition not more than 14 days after the opposition is

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served and filed.

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5.

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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

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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: June 1, 2012
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.12\Taylor, K.12-0376.osc.wpd

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