Braun v. Holland

Filing 13

ORDER OF DISMISSAL WITH LEAVE TO AMEND; APPOINTING COUNSEL; DIRECTIONS TO CLERK. Signed by Judge Jon S. Tigar on April 5, 2013. (Attachments: # 1 Certificate/Proof of Service)(wsn, COURT STAFF) (Filed on 4/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRUCE OLIVER BRAUN,

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Case No. 12-3633 JST (PR)

Petitioner,
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v.
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KIM HOLLAND, Warden,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND; APPOINTING COUNSEL;
DIRECTIONS TO CLERK

Respondent.

United States District Court
Northern District of California

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On October 18, 2012, the Court reviewed the petition and

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found it difficult to discern the specific claims petitioner wished to pursue. The Court dismissed

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with leave to amend in order to give petitioner the opportunity to file a simple, concise, and direct

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petition which states clearly and succinctly each claim he seeks to bring in federal court.

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Petitioner filed an amended petition on November 5, 2012. (Doc. #10.)
Upon review of the amended petition, the Court again finds it impossible to ascertain

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whether the allegations state cognizable claims for relief. While the amended petition separately

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identifies petitioner’s claims, petitioner lists over 30 such claims, some of which could be grounds

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for federal habeas relief, others of which plainly cannot. With respect to each claim listed, the

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allegations are vague. For example, Claim 17, which petitioner labels “Variance,” states “Open

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ended testimony allowed on allegation not charged. No fair warning on Evid. § 1108 material.”

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(Doc. #10 at 10.1) As another example, Claim 30, which petitioner labels “Non-specific Acts

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The page numbers used herein for this document refer to those affixed to the top of the page by
the court’s electronic filing program.

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Used to Convict,” states “No separation made by jury or instructions for such made by court.”

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(Doc #10 at 12.)
In addition to his list of claims, petitioner again attaches over eighty handwritten pages

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discussing many different issues, some of which are included in the listed claims and many of

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which are not. For example, in the first four paragraphs of the attachment, he identifies: (1) denial

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of a request for a lie detector test; (2) denial of multiple Marsden motions; (3) denial of a second

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doctor to evaluate petitioner’s competency to stand trial; (4) disqualification proceedings against

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the trial judge; (5) denial of speedy trial rights; (6) charges brought outside of the statute of

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limitations; (7) use of propensity evidence; (8) ineffective assistance of counsel; and (9) violation
of double jeopardy. (Doc. #10 at 20.) The confusing presentation prevents the Court from

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United States District Court
Northern District of California

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determining which claims deserve a response, and places an unfair burden on respondent in

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answering the petition. Accordingly, the Court will dismiss the amended petition with leave to

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amend.
The Court further finds good cause for appointment of counsel to represent petitioner. A

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district court may appoint counsel to represent a habeas petitioner whenever “the court determines

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that the interests of justice so require” and such person is financially unable to obtain

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representation. 18 U.S.C. § 3006A(a)(2)(B). As discussed above, petitioner is unable to present

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his arguments, and the Court cannot say that petitioner’s claims entirely lack merit. In addition,

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petitioner states in the amended petition that he: (1) suffers from mental illness, including post-

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traumatic stress syndrome originating in military service; and (2) has undergone competency

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proceedings and commitment to a state mental hospital. (Doc. #10 at 8, 11, 12, 32, 39, 46.) The

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petition also states that petitioner was not fully apprised of the consequences of his guilty plea,

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was not competent to plea, and attempted to withdraw his plea without the assistance of counsel.

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(Doc. #10 at 5, 8, 11.) In light of the indications of extreme limitations on petitioner’s abilities,

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the Court finds he will be unable to effectively represent himself in this case. Accordingly, the

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Court will refer this matter to the Federal Public Defender to find representation for petitioner.

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CONCLUSION

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In light of the foregoing:

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1.

The amended petition is DISMISSED with leave to amend.

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2.

This matter is REFERRED to the Federal Public Defender to find an attorney to

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represent petitioner. Upon being notified by the Federal Public Defender’s Office that an attorney

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has been located to represent petitioner, the Court will: (1) appoint that attorney as counsel for

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petitioner in this matter; and (2) issue a scheduling order for the filing of a second amended

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petition.
The Clerk shall provide a copy of this order to the Federal Public Defender’s Office

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3.

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in San Francisco.

United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 5, 2013

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_______________________________
JON S. TIGAR
United States District Judge

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