Martinez v. Sherman

Filing 17

ORDER by Judge Yvonne Gonzalez Rogers granting 15 Renewed Motion to Appoint Counsel; Appointed Patrick Joseph McKenna for Gabriel Antonio Martinez. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 10/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GABRIEL ANTONIO MARTINEZ,
Petitioner,

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v.

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SUZANNE M. PEERY, Acting Warden,1
Respondent.

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Case No. 15-cv-03480-YGR (PR)
ORDER GRANTING RENEWED
MOTION FOR APPOINTMENT OF
COUNSEL; AND APPOINTING
COUNSEL NUNC PRO TUNC TO
PREPARATION OF FEDERAL
PETITION FOR FILING

Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254 challenging his 2013 conviction in the Monterrey County Superior Court. Dkt. 1 at

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United States District Court
Northern District of California

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1. Specifically, he was convicted of one count of involuntary manslaughter (Cal. Penal Code

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§ 192(b)). Id. at 2. He was also convicted of three counts of furnishing a controlled substance

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(Cal. Health & Safety Code § 11352(a)), and of causing great bodily injury (Cal. Penal Code

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§ 12022.7(a)) with respect to two of these counts. Id. The trial court sentenced Petitioner to

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eleven years and eight months in state prison. Id.

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On October 29, 2015, Magistrate Judge Maria-Elena James issued an Order to Show

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Cause. Dkt. 5. In the same Order, Petitioner’s motion for appointment of counsel was also denied

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without prejudice to the Court’s sua sponte reconsideration of such a motion. Id. at 3. This action

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was then reassigned to the undersigned Judge. Dkt. 8. Respondent has filed an answer to the

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petition, and Petitioner has filed a traverse. Dkts. 13, 16.

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Before the Court is Petitioner’s renewed motion for appointment of counsel, which was

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submitted on the same date as his traverse. Dkt. 15. He specifically requests the appointment of

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Patrick McKenna, Esq. of the Sixth District Appellate Project, by whom Petitioner was

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represented in state court. It appears that Attorney McKenna has “substantially” assisted

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Petitioner in preparing his pro se federal petition and has prepared the traverse to the answer

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Suzanne M. Peery, the current acting warden of the prison where Petitioner is
incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure.

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without compensation. Dkt. 1-2 at 1; Dkt. 15 at 2-3.

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

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). The Court may, however, appoint

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counsel to represent a habeas petitioner whenever “the court determines that the interests of justice

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so require and such person is financially unable to obtain representation.” 18 U.S.C.

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§ 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court.

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See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728.

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Here, as grounds for federal habeas relief, Petitioner claims that: (1) there was insufficient
evidence to support the finding of great bodily injury enhancements; and (2) there was insufficient
evidence to support a guilty finding on one of the counts of furnishing a controlled substance.

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United States District Court
Northern District of California

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Dkt. 1 at 5.

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The Court finds that the appointment of counsel is warranted in this action and that

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Attorney McKenna is already familiar with the facts of the case and has prepared pleadings in

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support of the petition. Therefore, the Court exercises its discretion to appoint Patrick McKenna,

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Esq. of the Sixth District Appellate Project to represent Petitioner in this action, nunc pro tunc to

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his preparation of the federal petition for filing. Petitioner’s renewed motion for appointment of

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counsel is GRANTED. Dkt. 15. Counsel should seek reimbursement pursuant to 18 U.S.C.

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§ 3006A(d) and (e) via the Federal Public Defender’s Office.

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The Clerk of the Court shall send a copy of this Order to Patrick McKenna, Esq., Sixth

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District Appellate Project, 95 S. Market Street, Suite 570, San Jose, California 95113, to

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Petitioner, to the Federal Public Defender, and to Respondent.

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This Order terminates Docket No. 15.

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IT IS SO ORDERED.

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Dated: Octobwe 13, 2016

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YVONNE GONZALEZ ROGERS
United States District Judge

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