Legler v. Fletcher

Filing 7

ORDER by Judge Yvonne Gonzalez Rogers granting 6 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel; Directing Respondent to Show Cause why Petition should not be Granted. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 6/3/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 14-01497 YGR (PR)

ANTHONY LEGLER,

ORDER GRANTING IN FORMA
PAUPERIS STATUS; DIRECTING
RESPONDENT TO SHOW CAUSE WHY
THE PETITION SHOULD NOT BE
GRANTED; AND DENYING
PETITIONER'S MOTION FOR
APPOINTMENT OF COUNSEL

Petitioner,
vs.
KAREN FLETCHER, Acting Chief Probation
Officer of Santa Clara County,
Respondent.

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/

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Petitioner, a probationer, has filed this petition for a writ of habeas corpus pursuant to 28
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U.S.C. § 2254. Petitioner also seeks leave to proceed in forma pauperis. It does not appear from the
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face of the 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 application to proceed in forma pauperis (dkt. 6) is GRANTED.

2.

The Clerk of the Court shall serve a copy of this Order and the petition and all

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attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State
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of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address.
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3.

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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petition.

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4.

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 petition will be deemed submitted and ready for decision sixty (60) days

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after the date Petitioner is served with Respondent's Answer.

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5.

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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United States District Court
For the Northern District of California

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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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6.

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. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose

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address changes while an action is pending must promptly file a notice of change of address

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specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action without

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prejudice when: (1) mail directed to the pro se party by the Court has been returned to the Court as

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not deliverable, and (2) the Court fails to receive within sixty days of this return a written

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communication from the pro se party indicating a current address. See L.R. 3-11(b); see also

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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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Petitioner must also serve on Respondent's counsel all communications with the Court by
mailing a true copy of the document to Respondent's counsel.
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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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8.

Petitioner's motion for appointment of counsel (dkt. 3) is DENIED without prejudice.

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

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

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

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cause is issuing. Accord Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner

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had no 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).

United States District Court
For the Northern District of California

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9.

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IT IS SO ORDERED.

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DATED:

This Order terminates Docket nos. 3 and 6.

June 3, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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