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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD CARTER,
Petitioner,

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United States District Court
Northern District of California

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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

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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

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A jury found petitioner guilty of one count of first degree murder and various sentencing

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enhancements. People v. Carter, No. A135833, 2014 WL 2927570, at *1 (Cal. Ct. App. June 27,

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2014). The California Court of Appeal affirmed the conviction. Id. The California Supreme

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Court denied review. Petitioner states that all claims were presented to the California Supreme

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Court. Petition at 4.
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, petitioner asserts that: (1) he is entitled to equitable
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tolling for the late filing of the petition; (2) the prosecution violated Brady v. Maryland, 373 U.S.
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83 (1963); (3) trial counsel was ineffective; and (4) the trial court erred by allowing the
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United States District Court
Northern District of California

prosecution to cross examine him with a prejudicial photograph.
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Petitioner’s first claim regarding equitable tolling is not properly brought as a habeas claim

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and is dismissed. If respondent files a motion to dismiss the petition as untimely, then petitioner
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may present arguments for equitable tolling. Liberally construed, the remaining claims are
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sufficient to require a response.
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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
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.
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CONCLUSION
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1.

Leave to proceed in forma pauperis (Docket Nos. 2, 5) is GRANTED. The motion

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to appoint counsel (Docket No. 3) is DENIED.
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2.

The first claim is dismissed. Claims two, three and four are sufficient to proceed.

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The clerk shall serve by regular mail a copy of this order and the petition and all attachments
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thereto on respondent and respondent’s attorney, the Attorney General of the State of California.

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

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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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United States District Court
Northern District of California

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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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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: February 6, 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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HAROLD CARTER,

Case No. 16-cv-07167-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DEBBIE ASUNCION,
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 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.

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Harold Carter
G13886
CSP Lancaster
P.O. Box 4670
Lancaster, CA 93539

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Dated: February 6, 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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