Hawes v. Grounds

Filing 6

ORDER by Judge William Alsup denying 4 Motion to Appoint Counsel ; granting 5 Motion for Leave to Proceed in forma pauperis; granting 2 Motion for Leave to Proceed in forma pauperis (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 8/11/2014)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 TERRY R. HAWES, Petitioner, 8 9 ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING APPOINTMENT OF COUNSEL v. R. GROUNDS, Respondent. 11 (Dkt. 2, 4, 5) For the Northern District of California United States District Court 10 No. C 14-3189 WHA (PR) / 12 13 INTRODUCTION 14 Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 15 pursuant to 28 U.S.C. 2254 challenging his conviction in state court. He is granted leave to 16 proceed in forma pauperis, and respondent is ordered to show cause why the petition should not 17 be granted. 18 STATEMENT 19 Petitioner was convicted in Marin County Superior Court of attempted rape, terrorist 20 threats, threats to dissuade a witness, assault, and forcible penetration. He was sentenced to a 21 term of 27 years and eight months to life in state prison. In 2012, the California Supreme Court 22 ordered the sentence reduced. 23 ANALYSIS 24 A. STANDARD OF REVIEW 25 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose 28 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 1 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 2 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 3 court must “specify all the grounds for relief which are available to the petitioner ... and shall 4 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 5 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not 6 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 7 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 8 688, 689 (1st Cir. 1970)). 9 B. Petitioner claims that he was denied his right to counsel at the preliminary hearing 11 For the Northern District of California United States District Court 10 LEGAL CLAIMS because he was allowed to represent himself despite being mentally incompetent. When 12 liberally construed, this claim is sufficient to warrant an answer from respondent. 13 CONCLUSION 14 1. The clerk shall mail a copy of this order and the petition with all attachments to the 15 respondent and the respondent's attorney, the Attorney General of the State of California. The 16 clerk shall also serve a copy of this order on the petitioner. 17 2. Respondent shall file with the court and serve on petitioner, within ninety-one days 18 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 19 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 20 granted based on the claim found cognizable herein. Respondent shall file with the answer and 21 serve on petitioner a copy of all portions of the state prison disciplinary proceedings that are 22 relevant to a determination of the issues presented by the petition. 23 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 24 court and serving it on respondent within twenty-eight days of the date the answer is filed. 25 3. Respondent may file, within ninety-one days, a motion to dismiss on procedural 26 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 27 Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file 28 with the court and serve on respondent an opposition or statement of non-opposition within 2 1 twenty-eight days of the date the motion is filed, and respondent shall file with the court and 2 serve on petitioner a reply within fourteen days of the date any opposition is filed. 3 4. Petitioner is reminded that all communications with the court must be served on 4 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must 5 keep the court informed of any change of address and must comply with the court's orders in a 6 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 7 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 8 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 9 5. Leave to proceed in forma pauperis (dkt. 2, 5) is GRANTED. The motion for appointment of counsel (dkt. 4) is Denied without prejudice; counsel will be appointed sua 11 For the Northern District of California United States District Court 10 sponte at a later date if the circumstances of this case require, such as if an evidentiary hearing 12 becomes necessary. 13 IT IS SO ORDERED. 14 15 16 Dated: August 11 , 2014. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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