Powell v. Mule Creek State Prison et al

Filing 10

ORDER GRANTING MOTION FOR RECONSIDERATION; VACATING 2/13/2013 ORDER DISMISSING ACTION WITHOUT PREJUDICE; REOPENING CASE;DENYING MOTION FOR APPOINTMENT OF COUNSEL;AND DIRECTING RESPONDENT TO SHOW CAUSE WHY THE AMENDED PETITION SHOULD NOT BE GRANTED. Signed by Judge Yvonne Gonzalez Rogers on 5/31/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 5/31/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DARIAN MANUEL POWELL,

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No. C 12-05985 YGR (PR)

Petitioner,
v.

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WILLIAM KNIPP, Warden,
Respondent.
/

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ORDER (1) GRANTING MOTION FOR
RECONSIDERATION; (2) VACATING
FEB. 13, 2013 ORDER DISMISSING
ACTION WITHOUT PREJUDICE;
(3) REOPENING ACTION; (4) DENYING
MOTION FOR APPOINTMENT OF
COUNSEL; AND (5) DIRECTING
RESPONDENT TO SHOW CAUSE WHY
THE AMENDED PETITION SHOULD
NOT BE GRANTED

United States District Court
For the Northern District of California

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Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254 and an in forma pauperis (IFP) application. In an Order dated February 13, 2013, the Court

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dismissed the petition because Petitioner had not signed his petition or provided his certificate of

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funds in support of his IFP application.

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After the case was closed, in a letter dated February 19, 2013, Petitioner now informs the

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Court that he had mailed his certificate of funds and prisoner trust account statement "before

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December 17, 2012." (Pet'r Feb. 19, 2013 Letter at 1.) He claims that he also mailed his signed

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petition at the same time. He attaches these documents to his February 19, 2013 letter. The attached

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documents, each dated either December 10 or 11, 2012, are exactly what Petitioner claims they are;

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however, the only document showing evidence of being filed with the Court -- i.e., marked as

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"FILED" by the Clerk of the Court and date stamped December 17, 2012 -- is his prisoner trust

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account statement. The Court's electronic database shows that, in fact, only his prisoner trust

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account statement was filed on December 17, 2012. (Docket No. 6.) Because nothing else was

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scanned and e-filed by Clerk's Office staff, the Court assumes the Clerk did not receive any of the

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other aforementioned documents. Nevertheless, Petitioner has proven to the Court that he attempted

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to correct the deficiencies of his petition and IFP application before his case was dismissed. In view

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of this, the Court construes his February 19, 2013 letter as a motion for reconsideration of its

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February 13, 2013 Order of Dismissal. The Court GRANTS Petitioner's motion for reconsideration.

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Therefore, the Court's February 13, 2013 Order of Dismissal Without Prejudice is VACATED.

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The Court now reviews the signed petition, which will be labeled the "Amended Petition."

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Petitioner has also filed a motion for appointment of counsel. It does not appear from the face of the

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amended petition that it is without merit. Good cause appearing, the Court hereby issues the

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following orders:

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1.

Petitioner's motion for reconsideration is GRANTED, and the Court's February 13,

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2013 Order of Dismissal Without Prejudice is VACATED. The Clerk of the Court shall REOPEN

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this action. The Clerk is directed to file the signed petition attached to Petitioner's February 19,

United States District Court
For the Northern District of California

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2013 letter and mark it as filed on March 4, 2013, the date it was received. (Docket No. 9 at 22-87.)

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The Clerk is further directed to label it as the "Amended Petition."

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2.

Petitioner's application to proceed IFP (Docket No. 5) is GRANTED.

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3.

The Clerk serve a copy of this Order and the amended petition and all attachments

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thereto upon Respondent and Respondent's attorney, the Attorney General of the State of California.

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The Clerk shall also serve a copy of this Order on Petitioner at his current address.

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4.

Respondent shall file with this Court and serve upon Petitioner, within sixty (60)

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days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules

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

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Respondent shall file with the Answer a copy of all portions of the relevant state records that have

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been transcribed previously and that are relevant to a determination of the issues presented by the

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amended petition.

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5.

If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

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the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should

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Petitioner fail to do so, the amended petition will be deemed submitted and ready for decision sixty

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(60) days after the date Petitioner is served with Respondent's Answer.

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6.

Respondent may file with this Court and serve upon Petitioner, within sixty (60) days

of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set

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forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If

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Respondent files such a motion, 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 sixty (60) days of receipt of the

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motion, and Respondent shall file with the Court and serve on Petitioner a reply within fourteen

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(14) days of receipt of any opposition.

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7.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

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and Respondent informed of any change of address and must comply with the Court's orders in a

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timely fashion. Petitioner must also serve on Respondent's counsel all communications with the

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Court by mailing a true copy of the document to Respondent's counsel.

United States District Court
For the Northern District of California

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8.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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9.

Petitioner's motion for appointment of counsel is DENIED without prejudice. See

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) (unless an evidentiary hearing is required,

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the decision to appoint counsel in habeas corpus proceedings is within the discretion of the district

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court). Petitioner clearly presented his claims for relief in the petition and an order to show cause is

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issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no

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background in law, denial of appointment of counsel within discretion of district court where

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petitioner clearly presented issues in petition and accompanying memorandum). The Court will

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appoint counsel on its own motion if a evidentiary hearing is later required. See Knaubert, 791 F.2d

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at 728 (appointment of counsel mandatory if evidentiary hearing is required).

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10.

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IT IS SO ORDERED.

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This Order terminates Docket no. 5.

DATED: May 31, 2013
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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