Cox v. Muniz

Filing 9

ORDER FOR RESPONDENT TO SHOW CAUSE re 5 MOTION for Leave to Proceed in forma pauperis filed by Nicholas Cox, 4 MOTION to Appoint Counsel filed by Nicholas Cox. Signed by Judge James Donato on 1/9/18. (lrcS, COURT STAFF) (Filed on 1/9/2018) Modified on 1/9/2018 (lrcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NICHOLAS COX,
Petitioner,

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United States District Court
Northern District of California

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Case No. 17-cv-05723-JD

ORDER FOR RESPONDENT TO
SHOW CAUSE

v.

Re: Dkt. Nos. 4, 5

W.L. MUNIZ,
Respondent.

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Nicholas Cox, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. He has also filed a motion to proceed in forma pauperis.
BACKGROUND

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A Contra Costa County jury found petitioner guilty of shooting a firearm at an occupied

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building and shooting a firearm from a motor vehicle. People v. Cox, No. A142894, 2016 WL

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4939292, at *1 (Cal. Ct. App. Sep. 16, 2016). The California Court of Appeal affirmed the

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conviction. Id. The California Supreme Court denied review. Petition at 3.
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 his rights to a fair trial and
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federal due process were violated because: (1) the trial court erred by failing to instruct the jury on
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discharge of a firearm in a grossly negligent manner; and (2) the trial court erred by refusing to
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instruct the jury on imperfect defense. Liberally construed, these claims are sufficient to require a
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United States District Court
Northern District of California

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. The request is denied.
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CONCLUSION
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1.

The motion to proceed in forma pauperis (Docket No. 5) is GRANTED. The

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motion to appoint counsel (Docket No. 4) is DENIED.
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2.
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The clerk shall serve by regular mail a copy of this order and the petition and all

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.
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.

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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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United States District Court
Northern District of California

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 9, 2018
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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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NICHOLAS COX,

Case No. 17-cv-05723-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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W.L. MUNIZ,
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 9, 2018, 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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Nicholas Cox ID: AU6159
Salinas Valley State Prison BLDG 3 1-38
P.O. Box 1050
Soledad, CA 93960-1050

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Dated: January 9, 2018

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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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