Carter v. Asuncion

Filing 6

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR RESPONDENT TO SHOW CAUSE by Judge James Donato granting 5 Motion for Leave to Proceed in forma pauperis; granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. (lrcS, COURT STAFF) (Filed on 2/6/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HAROLD CARTER, Petitioner, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-07167-JD v. DEBBIE ASUNCION, Respondent. ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND FOR RESPONDENT TO SHOW CAUSE Re: Dkt. Nos. 2, 3, 5 12 13 14 Harold Carter, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also applied for leave to proceed in forma pauperis. BACKGROUND 15 16 A jury found petitioner guilty of one count of first degree murder and various sentencing 17 enhancements. People v. Carter, No. A135833, 2014 WL 2927570, at *1 (Cal. Ct. App. June 27, 18 2014). The California Court of Appeal affirmed the conviction. Id. The California Supreme 19 Court denied review. Petitioner states that all claims were presented to the California Supreme 20 Court. Petition at 4. 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, petitioner asserts that: (1) he is entitled to equitable 9 tolling for the late filing of the petition; (2) the prosecution violated Brady v. Maryland, 373 U.S. 10 83 (1963); (3) trial counsel was ineffective; and (4) the trial court erred by allowing the 11 United States District Court Northern District of California prosecution to cross examine him with a prejudicial photograph. 12 Petitioner’s first claim regarding equitable tolling is not properly brought as a habeas claim 13 and is dismissed. If respondent files a motion to dismiss the petition as untimely, then petitioner 14 may present arguments for equitable tolling. Liberally construed, the remaining claims are 15 sufficient to require a response. 16 Petitioner has also requested the appointment of counsel. The Sixth Amendment’s right to 17 counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th 18 19 Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) provides that in habeas cases, whenever “the court determines that the interests of justice so require”, representation may be provided for any 20 financially eligible person. Petitioner has presented his claims adequately, and they are not 21 particularly complex. 22 CONCLUSION 23 1. Leave to proceed in forma pauperis (Docket Nos. 2, 5) is GRANTED. The motion 24 to appoint counsel (Docket No. 3) is DENIED. 25 2. The first claim is dismissed. Claims two, three and four are sufficient to proceed. 26 The clerk shall serve by regular mail a copy of this order and the petition and all attachments 27 28 2 1 thereto on respondent and respondent’s attorney, the Attorney General of the State of California. 2 The clerk also shall serve a copy of this order on petitioner. 3 3. Respondent shall file with the Court and serve on petitioner, within fifty-six (56) 4 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 5 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 6 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 7 trial record that have been transcribed previously and that are relevant to a determination of the 8 issues presented by the petition. 9 10 United States District Court Northern District of California 11 12 13 14 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. 15 16 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 17 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 18 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 19 1997) (Rule 41(b) applicable in habeas cases). 20 IT IS SO ORDERED. 21 Dated: February 6, 2017 22 23 24 JAMES DONATO United States District Judge 25 26 27 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 HAROLD CARTER, Case No. 16-cv-07167-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 DEBBIE ASUNCION, 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 February 6, 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 Harold Carter G13886 CSP Lancaster P.O. Box 4670 Lancaster, CA 93539 20 21 Dated: February 6, 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 4

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