Scott v. Swarthout

Filing 6

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DENYING APPOINTMENT OF COUNSEL AND FOR RESPONDENT TO SHOW CAUSE by Judge Phyllis J. Hamilton denying 4 Motion to Appoint Counsel ; granting 5 Motion for Leave to Proceed in forma pauperis (Attachments: # 1 Certificate/Proof of Service) (nahS, COURT STAFF) (Filed on 11/20/2012)

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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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MILTON B. SCOTT,
Petitioner,

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vs.

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ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS, DENYING
APPOINTMENT OF
COUNSEL AND FOR
RESPONDENT TO SHOW
CAUSE

GARY SWARTHOUT, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-4901 PJH (PR)

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Petitioner, a California prisoner currently incarcerated at the California State Prison -

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Solano has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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He also applied for leave to proceed in forma pauperis.

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Petitioner was convicted in Contra Costa County, which is in this district, so venue is
proper here. See 28 U.S.C. § 2241(d).

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BACKGROUND

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A jury convicted petitioner of murder. He was sentenced to fifty years to life in

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prison. The California Court of Appeal affirmed the judgment and the California Supreme

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Court denied review.
DISCUSSION

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A.

Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject

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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,

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1108 (9th Cir. 1996) (Schroeder, J., concurring).
B.

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For the Northern District of California

United States District Court

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Legal Claims
As grounds for federal habeas relief, petitioner asserts that: (1) His trial counsel was

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ineffective for failing to object to the admission of certain recorded witness testimony; (2)

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the trial court erred and violated due process in allowing into evidence certain graphic rap

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lyrics; (3) the prosecution committed misconduct in closing arguments; and (4) the trial

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court erred in allowing into evidence another witness’ statement, who refused to testify,

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violating petitioner’s right to confrontation under the Constitution. These claims are

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sufficient to require a response.

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C.

Appointment of Counsel

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Petitioner has also moved for appointment of counsel.

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The Sixth Amendment's right to counsel does not apply in habeas corpus actions.

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C.

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§ 3006A(a)(2)(B) provides that in habeas cases, whenever “the court determines that the

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interests of justice so require, representation may be provided for any financially eligible

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person . . . .”

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Petitioner has presented his claims adequately, and they are not particularly

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complex. The interests of justice do not require appointment of counsel.

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///

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///
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CONCLUSION

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1. Leave to proceed in forma pauperis (document number 5 on the docket) is

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GRANTED.
2. The motion for appointment of counsel (document number 4 on the docket) is
DENIED.
3. The clerk shall serve by regular mail a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney General of the

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State of California. The clerk also shall serve a copy of this order on petitioner.

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4. Respondent shall file with the court and serve on petitioner, within sixty days of
the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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For the Northern District of California

United States District Court

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with
the court and serving it on respondent within thirty days of his receipt of the answer.
5. Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the

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date this order is entered. If a motion is filed, petitioner shall file with the court and serve

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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of

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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply

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within fourteen days of receipt of any opposition.

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6. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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must keep the court informed of any change of address and must comply with the court's

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orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.
Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
Dated:

November 20, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.12\Scott4901.osc.wpd

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For the Northern District of California

United States District Court

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