King v. Frauenheim

Filing 9

ORDER TO SHOW CAUSE (Illston, Susan) (Filed on 1/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES EDWARD KING
(CDCR # J-74101),

ORDER TO SHOW CAUSE
Petitioner,

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United States District Court
For the Northern District of California

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No. C 14-5267 SI (pr)

v.
SCOTT FRAUENHEIM, Warden,
Respondent.
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INTRODUCTION

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James Edward King filed this pro se action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The petition is now before the court for review pursuant to 28 U.S.C. §2243 and
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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BACKGROUND

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The petition provides the following information:
In 1997, King was convicted of four sex crimes and sentenced to a prison term of 35
years to life. In 2009, this court granted King's petition for writ of habeas corpus and ordered
that he be re-tried or released from custody. After King rejected a plea offer from the
prosecutor, a second trial was held.
At the second trial, King was convicted in Monterey County Superior Court of rape of
a child under age 14, oral copulation on a child under age 14, penetration with a foreign object
on a child under age 14, and committing a lewd act with a child under age 14. On April 13,
2010, he was sentenced to a prison term of 35 years to life.

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King appealed and sought collateral relief in the state courts following the 2010

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conviction. The California Court of Appeal affirmed the judgment of conviction in 2010, and

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the California Supreme Court denied his petition for review in 2013. The California Court of

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Appeal denied his petition for writ of habeas corpus in 2013, and the California Supreme Court

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denied his petition for writ of habeas corpus in 2014. He then filed this action.

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DISCUSSION

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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

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

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appears from the application that the applicant or person detained is not entitled thereto." 28

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U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

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vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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The petition alleges the following claims: (1) the trial court violated petitioner's right to

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a fair trial by permitting the victim to testify to her motive for testifying; (2) the trial court

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violated petitioner's Sixth Amendment rights by terminating the cross-examination of the victim;

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(3) the trial court violated petitioner's Sixth Amendment rights by admitting prior statements and

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testimony from the victim; (4) the trial court violated petitioner's Sixth Amendment rights by

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refusing to let him cross-examine the victim with an excerpt of her police interview; (5) the trial

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court violated petitioner's right to a fair trial by allowing evidence that child sexual abuse

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allegations rarely are false; (6) petitioner's right to a fair trial was violated when the videotape

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interview of the victim was given to the jury; and (7) the trial court violated petitioner's Sixth

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and Fourteenth Amendment rights by refusing to hold a hearing on alleged juror misconduct.

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Liberally construed, the claims are cognizable in a federal habeas proceeding and warrant a

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response.

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

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

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determines 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). The decision to appoint counsel is within the

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discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).

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Appointment is mandatory only when the circumstances of a particular case indicate that

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appointed counsel is necessary to prevent due process violations. See id.

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justice do not require appointment of counsel in this action. The request for appointment of

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The interests of

counsel is DENIED. (Docket # 3.)

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CONCLUSION

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For the foregoing reasons,

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1.

The petition states cognizable claims for habeas relief and warrants a response.

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2.

The clerk shall serve a copy of this order, the petition and all attachments thereto

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upon respondent and respondent's attorney, the Attorney General of the State of California. The

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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 March 27, 2015, an

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

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

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

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that are 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 April 24, 2015.
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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep

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the 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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6.

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

case on any document he submits to this court for consideration in this case.
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Petitioners in forma pauperis application is DENIED because he has ample funds

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to pay the filing fee. (Docket # 2.) Petitioner must pay the $5.00 filing fee no later than

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February 27, 2015.

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IT IS SO ORDERED.

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

DATED: January 13, 2015
SUSAN ILLSTON
United States District Judge

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