Martinez v. Sherman

Filing 23

ORDER DENYING REQUESTS FOR CERTIFICATE OF APPEALABILITY AND APPOINTMENT OF COUNSEL (Illston, Susan) (Filed on 4/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RENAN MARTINEZ,
Petitioner,

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United States District Court
Northern District of California

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Case No. 16-cv-04909-SI

v.
STUART SHERMAN,
Respondent.

ORDER DENYING REQUESTS FOR
CERTIFICATE OF APPEALABILITY
AND APPOINTMENT OF COUNSEL
Re: Dkt. No. 21

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Petitioner has requested a certificate of appealability in this action in which the court

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denied his petition for writ of habeas corpus. This is not a case in which “reasonable jurists would

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find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c).

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appealability is DENIED. Docket No. 21.

Accordingly, a certificate of

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The court notes with dismay that the request for certificate of appealability prepared by

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counsel has several significant errors. First, Petitioner argues that the “trial court allowed the

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prosecutor an instruction on uncharged crime of first degree murder.” Docket No. 21 at 2; see also

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id. at 4. The jury was not instructed on first degree murder, as this court explained in the order

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denying the petition for writ of habeas corpus. See Docket No. 19 at 21-22. Petitioner’s counsel

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apparently remains unaware that express malice is not the hallmark of first degree murder in

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California. See generally Cal. Penal Code § 189. Second, petitioner argues that an issue in this

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case is “controlled by Conde v. Henry,” 198 F.3d 734 (9th Cir. 2000). Docket No. 21 at 2. Conde

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is not “clearly established law, as determined by the Supreme Court of the United States,” 28

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U.S.C. § 2254(d)(1), and therefore does not “control” anything in this case governed by

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§ 2254(d)(1). Third, petitioner claims that the prosecutor “conceded that the case for second

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degree murder was weak.” Docket No. 21 at 2. There was no such concession by the prosecutor,

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as discussed at length in the order denying the petition for writ of habeas corpus. See Docket No.

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19 at 24-27. Fourth, petitioner urges that the state appellate court ruled “that the prosecutor was

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misleading the trial court and Petitioner and defense counsel, and that the prosecutor’s words were

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meaningless.” Docket No. 21 at 4. There was no such ruling by the state appellate court, as

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discussed at length in the order denying the petition for writ of habeas corpus. See Docket No. 19

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at 24-27. These sorts of errors should not be made at all by counsel, and certainly should not be

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made again in the same court that already explained (in the order denying the petition) why the

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statements were erroneous.

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Petitioner’s application to proceed in forma pauperis on appeal is DISMISSED as

United States District Court
Northern District of California

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unnecessary.

Docket No. 21.

This court already granted petitioner’s in forma pauperis

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application, and in forma pauperis status will continue on appeal.

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Petitioner has requested appointment of counsel to represent him on appeal. 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 in

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this action. The renewed request for appointment of counsel is DENIED. Docket No. 21.

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Any further motions should be made to the United States Court of Appeals.

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IT IS SO ORDERED.

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Dated: April 16, 2018
______________________________________
SUSAN ILLSTON
United States District Judge

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