Truong v. Fraueheim

Filing 8

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 1/29/2018. Signed by Judge Richard Seeborg on 11/14/17. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 11/14/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 KENG Q. TRUONG, United States District Court Northern District of California Petitioner, Case No. 17-cv-05173-RS (PR) 12 v. ORDER TO SHOW CAUSE 13 14 SCOTT FRAUEHEIM, Respondent. 15 16 17 18 INTRODUCTION Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 19 convictions. The petition for such relief is now before the Court for review pursuant to 20 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. 21 22 23 The petition states cognizable claims. Respondent shall file a response to the petition on or before January 29, 2018, unless an extension is granted. BACKGROUND 24 According to the petition, in 2013 a Santa Clara County Superior Court jury 25 convicted petitioner of forcible sodomy, forcible oral copulation, and dissuading a witness 26 by force. He was sentenced to 84 years in state prison. Petitioner sought, but was denied, 27 relief in the state courts. This federal habeas petition followed. 28 1 2 DISCUSSION This Court may entertain a petition for writ of habeas corpus “in behalf of a person 3 in custody pursuant to the judgment of a State court only on the ground that he is in 4 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 5 § 2254(a). A district court considering an application for a writ of habeas corpus shall 6 “award the writ or issue an order directing the respondent to show cause why the writ 7 should not be granted, unless it appears from the application that the applicant or person 8 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 9 only where the allegations in the petition are vague or conclusory, palpably incredible, or 10 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). United States District Court Northern District of California 11 As grounds for federal habeas relief, petitioner claims (1) the trial court violated his 12 Fifth Amendment rights when it admitted his constitutionally inadmissible interrogation 13 with police; and (2) defense counsel rendered ineffective assistance. When liberally 14 construed, these claims are cognizable on federal habeas review. MOTIONS 15 16 Petitioner’s motion to proceed in forma pauperis (Dkt. No. 6) is DENIED as moot, 17 the filing fee having been paid (Dkt. No. 5). His motion for the appointment of counsel 18 (Dkt. No. 2) is DENIED. There is no right to counsel in habeas corpus actions. See 19 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). A district court is authorized 20 under 18 U.S.C. § 3006A(a) (2)(B) to appoint counsel to represent a habeas petitioner 21 whenever “the court determines that the interests of justice so require” and such person is 22 financially unable to obtain representation. The decision to appoint counsel is within the 23 discretion of the district court, see Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), 24 and should be granted only when exceptional circumstances are present. See generally 1 J. 25 Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 26 (2d ed. 1994). Petitioner has not shown that there are exceptional circumstances 27 warranting the appointment of counsel. ORDER TO SHOW CAUSE CASE NO. 17-cv-05173-RS 28 2 1 CONCLUSION 2 1. The Clerk shall serve a copy of this order, the petition and all attachments 3 thereto, on respondent and respondent’s counsel, the Attorney General for the State of 4 California. The Clerk shall also serve a copy of this order on petitioner. 5 2. Respondent shall file with the Court and serve on petitioner on or before 6 January 29, 2018 an answer conforming in all respects to Rule 5 of the Rules Governing 7 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 8 based on petitioner’s cognizable claims. Respondent shall file with the answer and serve 9 on petitioner a copy of all portions of the state trial record that previously have been 10 United States District Court Northern District of California 11 transcribed and that are relevant to a determination of the issues presented by the petition. 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 12 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 13 answer is filed. 14 4. In lieu of an answer, respondent may file, on or before January 29, 2018, a 15 motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 16 Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 17 petitioner shall file with the Court and serve on respondent an opposition or statement of 18 non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 19 file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 20 opposition is filed. 21 22 23 5. 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. 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 24 Court and respondent informed of any change of address and must comply with the 25 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 26 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 27 ORDER TO SHOW CAUSE CASE NO. 17-cv-05173-RS 28 3 1 2 7. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend. 3 8. Petitioner’s application to proceed in forma pauperis (Dkt. No. 6) is DENIED. 4 9. Petitioner’s motion for the appointment of counsel (Dkt. No. 2) is DENIED. 5 6 7 10. The Clerk shall terminate Dkt. Nos. 2 and 6. IT IS SO ORDERED. Dated: November___, 2017 14 _________________________ RICHARD SEEBORG United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER TO SHOW CAUSE CASE NO. 17-cv-05173-RS 28 4

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