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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER J. MILLER,
Petitioner,

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United States District Court
Northern District of California

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Case No. 16-cv-06806-JD

ORDER FOR RESPONDENT TO
SHOW CAUSE

v.
JOEL MARTINEZ,
Respondent.

Re: Dkt. Nos. 2, 4, 5

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Christopher Miller, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He has also filed a motion to proceed in forma pauperis. Petitioner

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was convicted in Contra Costa County, which is in this district, so venue is proper here. See 28

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U.S.C. § 2241(d).

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BACKGROUND

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Miller was found guilty of molesting a child under the age of 14, possession of child

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pornography and failure to register as a sex offender. He was sentenced to 69 years in state prison.

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His appeals and state habeas petitions were denied.
DISCUSSION

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STANDARD OF REVIEW
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); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading
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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of
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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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LEGAL CLAIMS

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As grounds for federal habeas relief, Miller asserts that: (1) the trial court erred in
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excluding evidence which also prevented him from presenting a defense and trial counsel was
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ineffective for failing to more thoroughly challenge the ruling; (2) the prosecutor committed
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United States District Court
Northern District of California

misconduct during cross examination that suggested Miller had committed prior offenses and to
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the extent this claims is forfeited, trial counsel was ineffective; (3) trial counsel was ineffective by
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allowing the prosecutor to question Miller about past events that the trial court had excluded; (4)
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trial counsel was ineffective by allowing the prosecutor to misstate the law regarding Penal Code
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section 288; and (5) the trial court erred in issuing an excessive restitution fine in violation of
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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). These claims are sufficient to require a
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response.
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Petitioner also filed a motion for discovery. A habeas petitioner, unlike the usual civil
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litigant in federal court, is not entitled to discovery as a matter of ordinary course. See Bracy v.
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Gramley, 520 U.S. 899, 904 (1997). H owever, Rule 6(a) of the Federal Rules Governing Section
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2254 Cases, 28 U.S.C. foll. § 2254, provides that a “judge may, for good cause, authorize a party

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to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of
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discovery.” Before deciding whether a petitioner is entitled to discovery under Rule 6(a) the court

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must first identify the essential elements of the underlying claim. See Bracy, 520 U.S. at 904
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(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

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appropriate discovery to prove his claim. See id. Good cause for discovery under Rule 6(a) is
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shown “‘where specific allegations before the court show reason to believe that the petitioner may,

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if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief . . . .’” Id. at

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908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)); Pham v. Terhune, 400 F.3d 740, 743

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(9th Cir. 2005).
Miller seeks two witnesses to be examined, his mother and his trial counsel, regarding a

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letter these witnesses may have seen. At trial the victim testified that Miller molested him. The

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victim was cross-examined about a letter he wrote stating the Miller never hurt or molested him.

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The victim stated a relative told him to write the letter but he did not fully understand it. The letter

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was admitted into evidence. Miller seeks discovery regarding a possible earlier draft of the letter

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that these witnesses may have seen. He has failed to show good cause for discovery in this case.

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United States District Court
Northern District of California

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The letter was admitted into evidence and the victim was cross-examined at length about the letter

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and the circumstances surrounding it. The motion is denied.

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Petitioner has also requested the appointment of counsel. The Sixth Amendment’s right to

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counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th

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Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) provides that in habeas cases, whenever “the

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court determines that the interests of justice so require”, representation may be provided for any

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financially eligible person. Petitioner has presented his claims adequately, and they are not

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particularly complex.
CONCLUSION

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1.

The motion to proceed in forma pauperis (Docket No. 2) is GRANTED. The

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motion for discovery (Docket No. 4) and the motion to appoint counsel (Docket No. 5) are

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DENIED.

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2.

The clerk shall serve by regular mail a copy of this order and the petition and all

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attachments thereto on respondent and respondent’s attorney, the Attorney General of the State of

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California. The clerk also shall serve a copy of this order on petitioner.

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3.

Respondent shall file with the Court and serve on petitioner, within fifty-six (56)

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days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.
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Respondent shall file with the answer and serve on petitioner a copy of all portions of the state

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trial record that have been transcribed previously and that are relevant to a determination of the

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issues presented by the petition.

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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.
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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.

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United States District Court
Northern District of California

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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

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fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant
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to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir.
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1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
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Dated: January 17, 2017
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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER J. MILLER,

Case No. 16-cv-06806-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JOEL MARTINEZ,
Defendant.

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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

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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.

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Christopher J. Miller
T75520
Sierra Conservation Center
5150 O'Byrnes Ferry Rd.
Jamestown, CA 95327

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Dated: January 17, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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