Lunsford v. Henry

Filing 15

ORDER TO SHOW CAUSE by Judge Phyllis J. Hamilton granting 11 Motion for Extension of Time to File; denying 13 Motion to Appoint Counsel (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 9/6/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 MARCELLA LUNSFORD, Petitioner, 8 vs. 9 ORDER TO SHOW CAUSE GLORIA HENRY, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 10-0136 PJH (PR) / 12 13 This is a habeas case brought pro se by a state prisoner. Petitioner filed an 14 amended petition before the court had conducted its initial review of the original petition. 15 Because the amended petition omitted most of her claims and was difficult to understand, 16 the court dismissed it with leave to amend to provide a petition containing all the claims she 17 wished to present. She has done so. 18 19 20 DISCUSSION I. Review of Amended Petition As the court ordered, petitioner has provided a list of her claims. She asserts that: 21 (1) her counsel was ineffective in failing to object to purported prosecutorial misconduct; (2) 22 the jury was subject to outside influences, so was not unbiased; (3) there was prosecutorial 23 misconduct; (4) her sentence constitutes cruel and unusual punishment in that it is based 24 on a reversed special circumstance; (5) certain jury instructions were so defective as to 25 violate due process; (6) the jury’s finding of the special circumstance of lying in wait was 26 “illegally obtained;” (7) her due process rights were violated by the trial court’s failure to 27 instruct on withdrawal from a conspiracy; (8) the trial court failed to instruct on lesser 28 included offenses for which there was supporting evidence; (9) the prosecutor committed 1 misconduct in closing argument; (10) the judge was biased against her; and (11) witness’s 2 testimony was inconsistent with their earlier statements to an investigator for the 3 prosecution. 4 Petitioner’s claims six and eleven do not present federal claims. They will be 5 dismissed. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas 6 unavailable for violations of state law or for alleged error in the interpretation or 7 application of state law). The other claims are sufficient to require a response. 8 II. 9 Petitioner moves for appointment of counsel. The Sixth Amendment's right to counsel does not apply in habeas corpus actions. 11 For the Northern District of California United States District Court 10 Motion for Appointment of Counsel Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 12 3006A(a)(2)(B) authorizes appointment of counsel to represent a habeas petitioner 13 whenever "the court determines that the interests of justice so require and such person is 14 financially unable to obtain representation." 15 16 Petitioner has presented her claims adequately, and they are not particularly complex. The interests of justice do not require appointment of counsel. 17 CONCLUSION 18 1. Petitioner’s motion for appointment of counsel (document number 13 on the 19 docket) is DENIED. Her motion for an extension of time to amend (document 11) is 20 GRANTED. The amendment is deemed timely. The clerk shall show it as “filed” on the 21 docket. 22 2. Issues six and eleven are DISMISSED. 23 3. The clerk shall serve by regular mail a copy of this order and the petition and all 24 attachments thereto on respondent and respondent's attorney, the Attorney General of the 25 State of California. The clerk also shall serve a copy of this order on petitioner. 26 4. Respondent shall file with the court and serve on petitioner, within sixty days of 27 the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 28 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 2 1 granted. Respondent shall file with the answer and serve on petitioner a copy of all 2 portions of the state trial record that have been transcribed previously and that are relevant 3 to a determination of the issues presented by the petition. 4 5 6 If petitioner wishes to respond to the answer, she shall do so by filing a traverse with the court and serving it on respondent within thirty days service of the answer. 5. Respondent may file a motion to dismiss on procedural grounds in lieu of an Section 2254 Cases. If respondent files such a motion, petitioner shall file with the court 9 and serve on respondent an opposition or statement of non-opposition within thirty days of 10 receipt of the motion, and respondent shall file with the court and serve on petitioner a reply 11 For the Northern District of California answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 8 United States District Court 7 within fifteen days of receipt of any opposition. 12 6. Petitioner is reminded that all communications with the court must be served on 13 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner 14 must keep the court informed of any change of address and must comply with the court's 15 orders in a timely fashion. Failure to do so may result in the dismissal of this action for 16 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. 17 Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 18 IT IS SO ORDERED. 19 Dated: September 6, 2011. PHYLLIS J. HAMILTON United States District Judge 20 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\HC.10\LUNSFORD0136.OSC.wpd 3

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