Webber v. Gipson

Filing 5

ORDER TO SHOW CAUSE. Habeas Answer due by 6/14/2013. Petitioner's Traverse due by 7/12/2013. Petitioner's 2 MOTION for Leave to Proceed In Forma Pauperis is GRANTED. Petitioner's 3 MOTION to Appoint Counsel is DENIED. Signed by Judge Edward M. Chen on 4/15/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 4/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOYAL M. WEBBER,

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For the Northern District of California

United States District Court

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No. C-13-1444 EMC (pr)

Petitioner,
v.

ORDER TO SHOW CAUSE

CONNIE GIPSON, Warden,
Respondent.
___________________________________/

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I.

INTRODUCTION

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Petitioner, an inmate now at the California State Prison in Lancaster, filed this pro se action

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seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court

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for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in

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the United States District Courts. His request for appointment of counsel also is before the Court

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for consideration.

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II.

BACKGROUND

The petition and attachments thereto provide the following information: Petitioner was

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convicted in San Mateo County Superior Court of second degree murder with use of a firearm. On

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November 20, 2009, he was sentenced to 40 years to life in prison. He appealed. The California

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Court of Appeal affirmed the conviction in 2010 and the California Supreme Court denied the

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petition for review in 2011. Petitioner then filed this action.

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III.

DISCUSSION

This Court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A

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district court considering an application for a writ of habeas corpus shall "award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it appears

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from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

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The petition alleges the following claims: (1) Petitioner's right to due process was denied by

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the several instances of prosecutorial misconduct that are described in his petition; and (2)
Petitioner's right to due process was denied because the evidence was insufficient "to prove malice

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For the Northern District of California

United States District Court

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and to disprove imperfect self-defense." Docket # 1, p. 6. Liberally construed, these claims are

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cognizable in a federal habeas action.

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Petitioner has requested that counsel be appointed to represent him in this action. A district

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court may appoint counsel to represent a habeas petitioner whenever "the court determines that the

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interests of justice so require" and such person is financially unable to obtain representation. 18

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U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district

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court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only

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when the circumstances of a particular case indicate that appointed counsel is necessary to prevent

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due process violations. See id. The interests of justice do not require appointment of counsel at this

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time. The request for appointment of counsel is DENIED.

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IV.

CONCLUSION

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For the foregoing reasons,

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1.

The petition warrants a response.

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2.

The Clerk shall serve by mail a copy of this order, the petition and all attachments

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thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California.

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The Clerk shall also serve a copy of this order on Petitioner.

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3.

Respondent must file and serve upon Petitioner, on or before June 14, 2013, an

answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a

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copy of all portions of the court proceedings that have been previously transcribed and that are

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relevant to a determination of the issues presented by the petition.

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4.

If Petitioner wishes to respond to the answer, he must do so by filing a traverse with

the Court and serving it on Respondent on or before July 12, 2013.
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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the

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Court informed of any change of address and must comply with the Court's orders in a timely

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fashion.

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Petitioner is cautioned that he must include the case name and case number for this

case on any document he submits to the Court for consideration in this case.

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For the Northern District of California

United States District Court

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6.

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Petitioner's in forma pauperis application is GRANTED. (Docket # 2.)

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8.

Petitioner's request for appointment of counsel is DENIED. (Docket # 3.)

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9.

The Clerk will update the docket sheet to show that Petitioner is now housed at the

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California State Prison in Lancaster, rather than at the Corcoran State Prison address listed on his

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petition.

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IT IS SO ORDERED.

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Dated: April 15, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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