Campbell v. Grounds

Filing 5

ORDER TO SHOW CAUSE by Judge William Alsup granting 2 Motion to Appoint Counsel Appointed Gary K Dubcoff for DeShawn Lee Campbell (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 12/21/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 DESHAWN LEE CAMPBELL, Petitioner, For the Northern District of California United States District Court 10 11 12 13 No. C 12-6089 WHA (PR) ORDER TO SHOW CAUSE; GRANTING MOTION FOR APPOINTMENT OF COUNSEL AND APPOINTING COUNSEL v. RANDY GROUNDS, Warden, Respondent. (Docket No. 2) / 14 15 16 INTRODUCTION Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. 2254. He has paid the filing fee. Respondent is ordered to show 18 cause why the petition should not be granted based on petitioner’s cognizable claims, and 19 petitioner’s motion for appointment of counsel. 20 21 STATEMENT In 2009, petitioner was convicted in Santa Clara County Superior Court after a jury 22 found him guilty of second-degree murder of a peace officer, and enhancements for the 23 possession and use of a firearm were found true. He was sentenced to consecutive terms of life 24 without parole, twenty-five years to life, and forty months in state prison. On direct review, the 25 California Court of Appeal affirmed the conviction and sentence, and the California Supreme 26 Court denied a petition for review. The California Court of Appeal and the California Supreme 27 Court also denied petitions for a writ of habeas corpus. 28 1 2 ANALYSIS A. STANDARD OF REVIEW 3 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 6 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 7 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 8 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 9 court must “specify all the grounds for relief which are available to the petitioner ... and shall set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 11 For the Northern District of California United States District Court 10 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 12 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 13 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 14 688, 689 (1st Cir. 1970)). 15 B. 16 LEGAL CLAIMS Petitioner claims that: (1) the trial cour violated his right to present a defense; (2) the 17 trial court violated his rights to confrontation and due process by admitting hearsay evidence; 18 (3) the trial court violated his right to due process by admitting evidence of his bad character; 19 (4) prosecutorial misconduct violated his right to due process; (5) he was denied effective 20 assistance of counsel because his attorney did not object to prosecutorial misconduct; (6) the 21 prosecutor violated his right to due process by failing to correct a witness’s false testimony; (7) 22 he was denied effective assistance of counsel when counsel failed to correct a witness’s false 23 testimony; (8) he was denied effective assistance of counsel when counsel failed to object to 24 evidence of a third-party conspiracy; and (9) the cumulative prejudice of the foregoing errors 25 violated his right to due process. When liberally construed, these claims are cognizable, and an 26 order to show cause will issue. 27 C. 28 APPOINTMENT OF COUNSEL Petitioner has applied for appointment of counsel. The Sixth Amendment's right to 2 1 counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 2 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint 3 counsel to represent a habeas petitioner whenever "the court determines that the interests of 4 justice so require" and such person is financially unable to obtain representation. Here, 5 petitioner has shown that he is mentally retarded and that his claims present substantial and 6 complex legal issues. Petitioner would clearly be unable to pursue his claims on his own given 7 his mental retardation. Petitioner has also established that he is financially unable to pay for 8 representation. Under these circumstances, the interests of justice warrant appointment of 9 counsel in this case. The attorney who represented him in his direct and collateral appeals in state court, Gary K. Dubcoff, Esq., has filed a declaration explaining that he is willing and able 11 For the Northern District of California United States District Court 10 to represent petitioner in this proceeding. Accordingly, Mr. Dubcoff will be appointed to 12 represent petitioner in this case. 13 CONCLUSION 14 In light of the foregoing, 15 1. The clerk shall mail a copy of this order and the petition with all attachments to the 16 respondent and the respondent's attorney, the Attorney General of the State of California. The 17 clerk shall also serve a copy of this order on the petitioner. 18 2. Respondent shall file with the court and serve on petitioner, within 84 days of the 19 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 20 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 21 the claims found cognizable herein. Respondent shall file with the answer and serve on 22 petitioner a copy of all portions of the state trial record that have been transcribed previously 23 and that are relevant to a determination of the issues presented by the petition. 24 25 26 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within 28 days of the date the answer is filed. 3. Respondent may file, within 84 days, a motion to dismiss on procedural grounds in 27 lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 28 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 3 1 court and serve on respondent an opposition or statement of non-opposition within 28 days of 2 the date the motion is filed, and respondent shall file with the court and serve on petitioner a 3 reply within 14 days of the date any opposition is filed. 4 4. The motion for appointment of counsel (dkt. 2) is GRANTED. Gary K. Dubcoff, Esq., 5 is appointed pursuant to 18 U.S.C. § 3006A. See United States v. Salemo, 81 F.3d 1453, 1459 6 & n.4 (9th Cir. 1996). Counsel may seek payment under 18 U.S.C. § 3006A(d) and (e) via the 7 Federal Public Defender's Office. Appointment is nunc pro tunc to the date the petition was 8 filed. 9 IT IS SO ORDERED. 11 Dated: December For the Northern District of California United States District Court 10 The Clerk shall send a copy of this order to the Federal Public Defender's Office. 21 , 2012. 12 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 G:\PRO-SE\WHA\HC.12\CAMPBELL6089.OSC.wpd 17 18 19 20 21 22 23 24 25 26 27 28 4

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