Miller v. Martinez

Filing 6

ORDER TO SHOW CAUSE, Motions terminated:Denying 5 MOTION to Appoint Counsel filed by Christopher J. Miller, Denying 4 MOTION for Discovery filed by Christopher J. Miller,Granting 2 MOTION for Leave to Proceed in forma pauperis filed by Christopher J. Miller. Habeas Answer or Dispositive Motion due by 3/20/2017.. Signed by Judge James Donato on 1/17/17. (lrcS, COURT STAFF) (Filed on 1/17/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER J. MILLER, Petitioner, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-06806-JD ORDER FOR RESPONDENT TO SHOW CAUSE v. JOEL MARTINEZ, Respondent. Re: Dkt. Nos. 2, 4, 5 12 13 Christopher Miller, a California prisoner, filed a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. He has also filed a motion to proceed in forma pauperis. Petitioner 15 was convicted in Contra Costa County, which is in this district, so venue is proper here. See 28 16 U.S.C. § 2241(d). 17 BACKGROUND 18 Miller was found guilty of molesting a child under the age of 14, possession of child 19 pornography and failure to register as a sex offender. He was sentenced to 69 years in state prison. 20 His appeals and state habeas petitions were denied. DISCUSSION 21 22 23 STANDARD OF REVIEW This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 24 custody pursuant to the judgment of a State court only on the ground that he is in custody in 25 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 26 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 27 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 28 1 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 2 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 3 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 4 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 5 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 6 688, 689 (1st Cir. 1970)). 7 LEGAL CLAIMS 8 As grounds for federal habeas relief, Miller asserts that: (1) the trial court erred in 9 excluding evidence which also prevented him from presenting a defense and trial counsel was 10 ineffective for failing to more thoroughly challenge the ruling; (2) the prosecutor committed 11 United States District Court Northern District of California misconduct during cross examination that suggested Miller had committed prior offenses and to 12 the extent this claims is forfeited, trial counsel was ineffective; (3) trial counsel was ineffective by 13 allowing the prosecutor to question Miller about past events that the trial court had excluded; (4) 14 trial counsel was ineffective by allowing the prosecutor to misstate the law regarding Penal Code 15 section 288; and (5) the trial court erred in issuing an excessive restitution fine in violation of 16 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). These claims are sufficient to require a 17 response. 18 Petitioner also filed a motion for discovery. A habeas petitioner, unlike the usual civil 19 litigant in federal court, is not entitled to discovery as a matter of ordinary course. See Bracy v. 20 Gramley, 520 U.S. 899, 904 (1997). H owever, Rule 6(a) of the Federal Rules Governing Section 21 2254 Cases, 28 U.S.C. foll. § 2254, provides that a “judge may, for good cause, authorize a party 22 to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of 23 discovery.” Before deciding whether a petitioner is entitled to discovery under Rule 6(a) the court 24 must first identify the essential elements of the underlying claim. See Bracy, 520 U.S. at 904 25 26 (difficulties of proof aside, petitioner’s allegation of judicial bias, if proved, would violate due process clause). The court must then determine whether the petitioner has shown “good cause” for 27 appropriate discovery to prove his claim. See id. Good cause for discovery under Rule 6(a) is 28 2 1 shown “‘where specific allegations before the court show reason to believe that the petitioner may, 2 if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . . .’” Id. at 3 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)); Pham v. Terhune, 400 F.3d 740, 743 4 (9th Cir. 2005). Miller seeks two witnesses to be examined, his mother and his trial counsel, regarding a 6 letter these witnesses may have seen. At trial the victim testified that Miller molested him. The 7 victim was cross-examined about a letter he wrote stating the Miller never hurt or molested him. 8 The victim stated a relative told him to write the letter but he did not fully understand it. The letter 9 was admitted into evidence. Miller seeks discovery regarding a possible earlier draft of the letter 10 that these witnesses may have seen. He has failed to show good cause for discovery in this case. 11 United States District Court Northern District of California 5 The letter was admitted into evidence and the victim was cross-examined at length about the letter 12 and the circumstances surrounding it. The motion is denied. 13 Petitioner has also requested the appointment of counsel. The Sixth Amendment’s right to 14 counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th 15 Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) provides that in habeas cases, whenever “the 16 court determines that the interests of justice so require”, representation may be provided for any 17 financially eligible person. Petitioner has presented his claims adequately, and they are not 18 particularly complex. CONCLUSION 19 20 1. The motion to proceed in forma pauperis (Docket No. 2) is GRANTED. The 21 motion for discovery (Docket No. 4) and the motion to appoint counsel (Docket No. 5) are 22 DENIED. 23 2. The clerk shall serve by regular mail a copy of this order and the petition and all 24 attachments thereto on respondent and respondent’s attorney, the Attorney General of the State of 25 California. The clerk also shall serve a copy of this order on petitioner. 26 3. Respondent shall file with the Court and serve on petitioner, within fifty-six (56) 27 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 28 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 3 1 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 2 trial record that have been transcribed previously and that are relevant to a determination of the 3 issues presented by the petition. 4 5 6 7 8 9 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on respondent within twenty-eight (28) days of his receipt of the answer. 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the date this order is entered. If a motion is filed, petitioner shall file with the Court and serve on respondent an opposition or statement of non-opposition within twenty-eight (28) days of receipt of the motion, and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days of receipt of any opposition. 5. 10 United States District Court Northern District of California 11 Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep the Court informed of any change of address and must comply with the Court’s orders in a timely 12 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 13 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 14 1997) (Rule 41(b) applicable in habeas cases). 15 IT IS SO ORDERED. 16 Dated: January 17, 2017 17 18 19 JAMES DONATO United States District Judge 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CHRISTOPHER J. MILLER, Case No. 16-cv-06806-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 JOEL MARTINEZ, Defendant. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on January 17, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 19 Christopher J. Miller T75520 Sierra Conservation Center 5150 O'Byrnes Ferry Rd. Jamestown, CA 95327 20 21 Dated: January 17, 2017 22 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 5

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