Robles v. State of California

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND.Motions terminated: 5 MOTION for Leave to Proceed in forma pauperis is GRANTED. 6 MOTION to Appoint Counsel is DENIED. Signed by Judge Claudia Wilken on 3/4/2011. (ndr, COURT STAFF) (Filed on 3/4/2011)

Robles v. State of California

Doc. 9

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

GILBERT ROBLES, JR., 5 Plaintiff, 6 v. 7 STATE OF CALIFORNIA, 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant. /

No. C 11-00038 CW (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND

This case was opened when Plaintiff, a state prisoner, filed a complaint on the Court's civil rights form. The Clerk of the Court

sent him a notice that he had failed to pay the $350.00 filing fee or apply for leave to proceed in forma pauperis (IFP). thereafter filed an application to proceed IFP. Although Plaintiff submitted his claims on a civil rights form, it is apparent that he intended to file a petition for a writ of habeas corpus because he challenges his conviction. Accordingly, the Clerk of the Court shall reclassify this case on the docket as a habeas action. The filing fee will be $5.00. Plaintiff

The civil rights form Plaintiff used does not include the information necessary to pursue a habeas action. Based on the

information on the form, the Court cannot determine whether Plaintiff has exhausted his claims in the California courts before filing this action. Federal habeas petitioners are first required

to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28

Dockets.Justia.com

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U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court must be

given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (petitioner must invoke "one complete round of the State's established appellate review process"). Therefore, Plaintiff

cannot present claims to this Court which he has not first raised in the highest state court available, the Supreme Court of California, usually by direct appeal or by way of a state habeas petition. The Court cannot fairly evaluate this habeas action in its present state. Accordingly, the Court will allow Plaintiff an

opportunity to file amended claims on the Court's habeas form to correct these deficiencies, if he wishes to go forward with this action as a habeas action. The failure to file a completed habeas

form as directed below will result in the dismissal of this action without prejudice. CONCLUSION 1. The Clerk of the Court shall reclassify this case on the

docket as a habeas action with a filing fee of $5.00. 2. 3. Plaintiff's motion to proceed IFP is GRANTED. No later than thirty (30) days from the date of this

Order, Plaintiff shall file with the Court the attached 28 U.S.C. § 2254 habeas petition form, completed in full, including the state post-conviction relief he has sought and any claims he seeks to

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raise in federal court.

He should clearly write in the correct

caption and case number for this action, C 11-00038 CW (PR). 4. If Plaintiff fails to file a completed § 2254 habeas

petition form within the thirty-day deadline, the case will be dismissed for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. See Link v. Wabash R.R., 370 U.S. 626,

633 (1962) (pursuant to Rule 41(b), a district court may on its own motion, dismiss an action for failure to prosecute or to comply with a court order); see also Malone v. United States Postal

Serv., 833 F.2d 128, 133 (9th Cir. 1987) (the district court should afford the litigant prior notice before dismissing for failure to prosecute). 5. Plaintiff's motion for appointment of counsel (docket no. The Sixth Amendment right to counsel does not apply See Knaubert v. Goldsmith, 791 F.2d 722,

6) is DENIED.

in habeas corpus actions. 728 (9th Cir. 1986).

Title 18 U.S.C. § 3006A(a)(2)(B), however,

authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require" and such person is financially unable to obtain representation. The decision to appoint counsel is within See Chaney v. Lewis, 801

the discretion of the district court.

F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The courts have

made appointment of counsel the exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or mentally or

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physically impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in which petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See generally 1 J.

Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only

when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See

Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). 6. The Clerk of the Court shall send Plaintiff a blank

§ 2254 habeas petition form. 7. This Order terminates Docket nos. 5 and 6.

IT IS SO ORDERED. DATED: 3/4/2011 ____________________________ CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gilbert Robles K11761 Kern Valley State Prison P.O. Box 5104 D3-220 Low Delano, CA 93216 Dated: March 4, 2011 v. GILBERT ROSALES JR.,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV11-00038 CW Plaintiff, CERTIFICATE OF SERVICE CALIFORNIA STATE OF et al, Defendant. /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 4, 2011, I SERVED a true and correct copy(ies) of the attached and a blank § 2254 habeas petition form, 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.

Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk

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