Jaffe v. Kramer
Filing
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ORDER REGARDING COUNSEL. Signed by Judge Phyllis J. Hamilton on 6/14/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 6/14/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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STEVEN JAFFE,
No. C 05-4439 PJH (PR)
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For the Northern District of California
United States District Court
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Petitioner,
ORDER REGARDING
COUNSEL
vs.
RICHARD KIRKLAND, Warden,
Respondent.
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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. §
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2254. The court denied the petition and petitioner appealed. The United States Court of
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Appeals for the Ninth Circuit affirmed in part and reversed in part. The court of appeals
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perceived a Confrontation Clause claim in the petition that this court had not discussed.
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The circuit concluded that this claim was not exhausted, however, and remanded for this
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court to “determine in the first instance whether any California procedure remains available
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to Jaffe for rasing [the confrontation claim],” and if so to “exercise its discretion to determine
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whether Jaffe’s petition should be stayed . . . .”
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In view of the terms of the remand, there are two issues that the parties must now
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address: (1) Whether any state procedure remains available that would allow petitioner to
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exhaust the Confrontation Clause claim in the California courts; and (2) if such a procedure
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does exist, whether proceedings in this case should be stayed to allow petitioner to
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exhaust. The first of these issues involves the complex doctrine of procedural default, and
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if the court were to conclude that the claim is procedurally defaulted, petitioner might want
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to attempt to show cause and prejudice or actual innocence, exceptions to the bar. The
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court concludes that appointment of counsel might be in order.
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Therefore, within twenty-eight days of the date this order is entered (the date the
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clerk has stamped on the first page), petitioner shall file a motion for appointment of
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counsel or a statement that he does not want counsel.
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IT IS SO ORDERED.
Dated: June 14, 2012.
PHYLLIS J. HAMILTON
United States District Judge
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For the Northern District of California
United States District Court
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G:\PRO-SE\PJH\HC.05\Jaffe4439.remand aty deadline.wpd
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