Street v. Knipp
Filing
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ORDER by Judge Claudia Wilken TO SHOW CAUSE; DENYING 7 REQUEST FOR APPOINTMENT OF COUNSEL; GRANTING 3 APPLICATION TO PROCEED IN FORMA PAUPERIS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 1/11/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HOWARD STREET,
Petitioner,
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No. C 11-05126 CW (PR)
ORDER TO SHOW CAUSE; DENYING
REQUEST FOR APPOINTMENT OF
COUNSEL; GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS
v.
W. KNIPP, Warden,
(Docket nos. 3 & 7)
Respondent.
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United States District Court
For the Northern District of California
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Petitioner, a state prisoner, has filed this petition for a
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writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the
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validity of his criminal conviction.
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face of the petition that it is without merit.
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Court will order a response to the petition, as set forth below.
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Petitioner requests the appointment of counsel to represent
It does not appear from the
Accordingly, the
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him in this action.
The Sixth Amendment right to counsel does not
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apply in habeas corpus actions.
See Knaubert v. Goldsmith, 791
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F.2d 722, 728 (9th Cir. 1986).
Title 18 U.S.C. § 3006A(a)(2)(B),
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however, authorizes a district court to appoint counsel to
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represent a habeas petitioner whenever "the court determines that
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the interests of justice so require" and such person is financially
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unable to obtain representation.
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is within the discretion of the district court.
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Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at
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728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).
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courts have made appointment of counsel the exception rather than
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the rule by limiting it to: (1) capital cases; (2) cases that turn
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on substantial and complex procedural, legal or mixed legal and
The decision to appoint counsel
See Chaney v.
The
factual questions; (3) cases involving uneducated or mentally or
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physically impaired petitioners; (4) cases likely to require the
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assistance of experts either in framing or in trying the claims;
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(5) cases in which petitioner is in no position to investigate
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crucial facts; and (6) factually complex cases.
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Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure
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§ 12.3b at 383-86 (2d ed. 1994).
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when the circumstances of a particular case indicate that appointed
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counsel is necessary to prevent due process violations.
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Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th
United States District Court
For the Northern District of California
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See generally 1 J.
Appointment is mandatory only
See
Cir. 1965).
At this early stage of the proceedings the Court is unable to
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determine whether the appointment of counsel is mandated for
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Petitioner.
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claims adequately in the petition, and no evidentiary hearing
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appears necessary.
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require appointment of counsel at this time, and Petitioner's
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request is DENIED.
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may reconsider on its own motion and appoint counsel if the Court
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finds an evidentiary hearing is necessary following consideration
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of the merits of Petitioner's claims.
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The Court notes that Petitioner has presented his
Accordingly, the interests of justice do not
This denial is without prejudice.
The Court
In view of Petitioner's pauper status, the Court GRANTS the
application to proceed in forma pauperis.
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CONCLUSION
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For the foregoing reasons, the Court orders as follows:
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1.
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DENIED.
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2.
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GRANTED.
Petitioner's request for the appointment of counsel is
(Docket no. 3.)
Petitioner's application to proceed in forma pauperis is
(Docket no. 7.)
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3.
The Clerk of the Court shall serve a copy of this Order
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and the petition and all attachments thereto upon Respondent and
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Respondent's attorney, the Attorney General of the State of
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California.
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Petitioner at his current address.
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4.
The Clerk shall also serve a copy of this Order on
Respondent shall file with this Court and serve upon
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Petitioner, within one-hundred twenty (120) days of the issuance of
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this Order, an Answer conforming in all respects to Rule 5 of the
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Rules Governing Section 2254 Cases, showing cause why a writ of
United States District Court
For the Northern District of California
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habeas corpus should not be issued.
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Answer a copy of all portions of the relevant state records that
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have been transcribed previously and that are relevant to a
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determination of the issues presented by the petition.
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5.
Respondent shall file with the
If Petitioner wishes to respond to the Answer, he shall
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do so by filing a Traverse with the Court and serving it on
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Respondent within sixty (60) days of his receipt of the Answer.
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Should Petitioner fail to do so, the petition will be deemed
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submitted and ready for decision sixty (60) days after the date
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Petitioner is served with Respondent's Answer.
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6.
Respondent may file with this Court and serve upon
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Petitioner, within sixty (60) days of the issuance of this Order, a
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motion to dismiss on procedural grounds in lieu of an Answer, as
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set forth in the Advisory Committee Notes to Rule 4 of the Rules
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Governing Section 2254 Cases.
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Petitioner shall file with the Court and serve on Respondent an
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opposition or statement of non-opposition to the motion within
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sixty (60) days of receipt of the motion, and Respondent shall file
If Respondent files such a motion,
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with the Court and serve on Petitioner a reply within fifteen (15)
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days of receipt of any opposition.
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7.
It is Petitioner's responsibility to prosecute this case.
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Petitioner must keep the Court and Respondent informed of any
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change of address and must comply with the Court's orders in a
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timely fashion.
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all communications with the Court by mailing a true copy of the
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document to Respondent's counsel.
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8.
Petitioner must also serve on Respondent's counsel
Extensions of time are not favored, though reasonable
United States District Court
For the Northern District of California
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extensions will be granted.
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must be filed no later than ten (10) days prior to the deadline
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sought to be extended.
Any motion for an extension of time
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This Order terminates Docket nos. 3 and 7.
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IT IS SO ORDERED.
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Dated: 1/11/2012
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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