Gipson v. Gastelo

Filing 6

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 11/20/2020. Signed by Judge Laurel Beeler on 09/11/2020. (ejkS, COURT STAFF) (Filed on 9/11/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 GERALD A. GIPSON, Case No. 20-cv-05861-LB Petitioner, 12 ORDER TO SHOW CAUSE v. 13 Re: ECF Nos. 3, 5 14 JOSEPHINE GASTELLO, 15 Respondent. 16 17 INTRODUCTION 18 Gerald A. Gipson, an inmate at the California Men’s Colony in San Luis Obispo, filed this pro 19 20 se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He consented to proceed 21 before a magistrate judge. (ECF No. 5.)1 His petition is now before the court for review pursuant 22 to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States 23 District Courts. This order requires the respondent to respond to the petition and denies the request 24 for appointment of counsel. 25 26 27 1 28 Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECFgenerated page numbers at the top of documents. ORDER – No. 20-cv-05861-LB  STATEMENT 1 2 Mr. Gipson provides the following information in his habeas petition and attachments thereto. 3 Following a jury trial in Alameda County Superior Court, he was convicted of murder and first- 4 degree robbery. Sentence enhancement allegations that he had suffered prior felony convictions, 5 inflicted great bodily injury, and used a firearm were found true. On March 3, 2017, he was 6 sentenced to 108 years, four months to life in prison. He appealed. The California Court of Appeal 7 held that the great-bodily-injury enhancement was imposed erroneously but otherwise affirmed the 8 conviction and remanded for resentencing in light of new laws that gave the trial court the 9 discretion to strike certain enhancements. The California Supreme Court denied Mr. Gipson’s 10 petition for review. He then filed this action. ANALYSIS United States District Court Northern District of California 11 12 This court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 13 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 14 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court 15 considering an application for a writ of habeas corpus shall “award the writ or issue an order 16 directing the respondent to show cause why the writ should not be granted, unless it appears from 17 the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 18 The federal petition for writ of habeas corpus alleges three claims. First, Mr. Gipson claims 19 that he was denied effective assistance of counsel as a result of the denial of a defense motion to 20 continue the trial. Second, he contends that he was denied his Sixth Amendment right to counsel 21 when the trial court denied his motion to substitute counsel to prepare a motion for new trial that 22 was based on trial counsel’s ineffectiveness. Third, he claims that the admission of improper 23 opinion testimony violated his Sixth Amendment right to a fair trial and his Fourteenth 24 Amendment right to due process. Liberally construed, these claims are cognizable in a federal 25 habeas action and warrant a response. 26 Mr. Gipson has requested that counsel be appointed to represent him in this action. A district 27 court may appoint counsel to represent a habeas petitioner whenever “the court determines that the 28 interests of justice so require” and such person is financially unable to obtain representation. 18 ORDER – No. 20-cv-05861-LB 2  1 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district 2 court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only 3 when the circumstances of a particular case indicate that appointed counsel is necessary to prevent 4 due process violations. See id. The interests of justice do not require appointment of counsel in 5 this action. Mr. Gipson has adequately pled his claims for relief and all of his claims previously 6 were presented by counsel in his direct appeal. Mr. Gipson’s request for appointment of counsel is 7 DENIED. (ECF No. 5 at 2.) CONCLUSION 8 9 For the foregoing reasons, 1. The petition warrants a response. 11 United States District Court Northern District of California 10 2. The clerk shall serve by mail a copy of this order and the petition upon the respondent and 12 the respondent's attorney, the Attorney General of the State of California. The clerk shall also 13 serve a copy of this order on the petitioner. 14 3. The clerk shall electronically serve a copy of this order upon the respondent and the 15 respondent’s attorney, the Attorney General of the State of California, at the following email 16 address: The petition and any exhibits thereto are available via the 17 Electronic Case Filing (ECF) system for the Northern District of California. The clerk also shall 18 serve by mail a copy of this order on the petitioner. 19 4. The respondent must file and serve upon the petitioner, on or before November 20, 2020, 20 an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, 21 showing cause why a writ of habeas corpus should not be issued. The respondent must file with 22 the answer a copy of all portions of the court proceedings that have been previously transcribed 23 and that are relevant to a determination of the issues presented by the petitioner. 24 25 26 27 5. If the petitioner wishes to respond to the answer, he must do so by filing a traverse with the court and serving it on the respondent on or before December 31, 2020. 6. The petitioner is responsible for prosecuting this case. The petitioner must promptly keep the court informed of any change of address and must comply with the court's orders in a timely 28 ORDER – No. 20-cv-05861-LB 3  1 fashion. The petitioner is cautioned that he must include the case name and case number for this 2 case on the first page of any document he submits to the court for consideration in this case. 3 7. The request for appointment of counsel is DENIED. (ECF No. 5 at 2.) 4 IT IS SO ORDERED. 5 Dated: September 11, 2020 ______________________________________ LAUREL BEELER United States Magistrate Judge 6 7 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 28 ORDER – No. 20-cv-05861-LB 4 

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