Douglas v. Grounds

Filing 5

ORDER TO SHOW CAUSE, granting 2 MOTION for Leave to Proceed in forma pauperis filed by Larry Douglas, denying 3 MOTION to Appoint Counsel filed by Larry Douglas. Habeas Answer or Dispositive Motion due by 2/18/2014. Signed by Judge Charles R. Breyer on 12/12/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 12/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LARRY DOUGLAS, AE2986,
Petitioner,

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vs.
R. T. C. GROUNDS, Warden,
Respondent.

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No. C 13-4655 CRB (PR)
ORDER TO SHOW CAUSE
(Docket #2 & 3)

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Petitioner, a state prisoner incarcerated at Salinas Valley State Prison, has

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filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging a conviction from Santa Clara County Superior Court. Petitioner

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

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28 U.S.C. § 1915.

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BACKGROUND
Petitioner was convicted by a jury of two counts of attempted murder, two

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counts of assault with a firearm, one count of pimping and one count of

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pandering. The jury also found true allegations that petitioner acted willfully,

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deliberately and with premeditation in the commission of the attempted murders,

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personally used a firearm in the commission of the assaults and the attempted

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murders, and personally and intentionally discharged a firearm in the commission

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of the attempted murders. The court found true allegations that petitioner had

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suffered a prior serious felony strike conviction and a prison prior, and, on July

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14, 2010, sentenced him to state prison for a life term consecutive to a

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determinate term of 58 years.
Petitioner unsuccessfully appealed his conviction to the California Court

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of Appeal and the Supreme Court of California, which on October 10, 2012

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denied review of a petition allegedly raising the same claims raised here.
DISCUSSION

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A.

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).
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.

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Claims
Petitioner seeks federal habeas corpus relief by raising the following

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claims: (1) the trial court prejudicially erred in responding to a question from the

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jury regarding the intent element of attempted murder, (2) the trial court

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prejudicially erred in failing to instruct the jury that a prosecution witness was an

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accomplice, (3) the prosecutor engaged in prosecutorial misconduct, (4) there

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was insufficient evidence to support the pimping and pandering convictions, and

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(5) cumulative prejudice. Liberally construed, the claims appear cognizable

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under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247

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F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for

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writs of habeas corpus liberally).

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C.

Motion for Appointment of Counsel
Petitioner’s motion for appointment of counsel (docket #3) 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. Accord

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Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no

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background in law, denial of appointment of counsel within discretion of district

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court where petitioner clearly presented issues in petition and accompanying

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memorandum). The court will appoint counsel on its own motion if an

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evidentiary hearing is later required. See Knaubert, 791 F.2d at 728

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(appointment of counsel mandatory if evidentiary 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.
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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.
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.

Petitioner is reminded that all communications with the court must

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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: Dec. 12, 2013
CHARLES R. BREYER
United States District Judge

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