Alaniz v. Frauenheim

Filing 8

ORDER TO SHOW CAUSE. Petitioner's request to proceed IFP (ECF No. 3 ) is GRANTED. Petitioner's motion for appointment of counsel (ECF No. 4 ) is DENIED without prejudice. Habeas Answer or Dispositive Motion due by 10/10/2017. Signed by Magistrate Judge Sallie Kim on 8/9/2017. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 8/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADRIAN ALANIZ, AV0682,
Petitioner,

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United States District Court
Northern District of California

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Case No. 17-cv-03569-SK (PR)
ORDER TO SHOW CAUSE

v.

(ECF Nos. 3 & 4)

SCOTT FRAUENHEIM, Warden,
Respondent.

Petitioner, a state prisoner incarcerated at Pleasant Valley State Prison (PVSP), has filed a

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pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from

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Santa Clara County Superior Court. He also seeks appointment of counsel and leave to proceed in

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forma pauperis (IFP) under 28 U.S.C. § 1915.

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The petition is properly before the undersigned for initial review because petitioner has
consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).
BACKGROUND

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Petitioner was convicted by a jury of first degree murder and participation in a criminal

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street gang. As to the murder, the jury also found true allegations that petitioner personally and

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intentionally discharged a firearm causing death and committed the offense for the benefit of, at

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the direction of, or in association with a criminal street gang. On October 31, 2014, he was

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sentenced to 50 years to life in state prison.

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Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the

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Supreme Court of California, which on December 21, 2016 denied review of a petition allegedly

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raising the claims raised here.

DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a 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).
It shall “award the writ or issue an order directing the respondent to show cause why the

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writ should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” Id. § 2243.

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B.

Claims
Petitioner seeks federal habeas corpus relief by raising several claims, including

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United States District Court
Northern District of California

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instructional and evidentiary error, prosecutorial misconduct, insufficiency of the evidence and

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ineffective assistance of counsel. Liberally construed, the claims appear cognizable under § 2254

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and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001)

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(federal courts must construe pro se petitions for writs of habeas corpus liberally).

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C.

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Motion for Appointment of Counsel
Petitioner’s motion for appointment of counsel (ECF No. 4) is DENIED without prejudice.

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See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (unless an evidentiary hearing is

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required, the decision to appoint counsel in habeas corpus proceedings is within the discretion of

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the district court). Petitioner adequately presented his claims for relief in the petition and an order

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to show cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although

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petitioner had no background in law, denial of appointment of counsel within discretion of district

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court where petitioner clearly presented issues in petition and accompanying memorandum). The

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court will appoint counsel on its own motion if an evidentiary hearing is later required. See

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Knaubert, 791 F.2d at 728 (appointment of counsel mandatory if evidentiary hearing is required).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

Petitioner’s request to proceed IFP (ECF No. 3) is GRANTED.

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2.

The clerk shall serve (1) a copy of this order, (2) the petition and all attachments
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thereto, and (3) a notice of assignment of prisoner case to a United States magistrate judge and

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accompanying magistrate judge jurisdiction consent or declination to consent form (requesting

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that respondent consent or decline to consent within 28 days of receipt of service), on respondent

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and respondent’s attorney, the Attorney General of the State of California. The clerk also shall

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serve a copy of this order on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within 60 days of the

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

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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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United States District Court
Northern District of California

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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 30 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

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases. If respondent files such a motion, petitioner must serve and file an opposition or

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statement of non-opposition not more than 28 days after the motion is served and filed, and

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respondent must serve and file a reply to an opposition not more than 14 days after the opposition

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is served and filed.

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5.

Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must also

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keep the court and all parties informed of any change of address.

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IT IS SO ORDERED.
Dated: August 9, 2017
______________________________________
SALLIE KIM
United States Magistrate Judge

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