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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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 GABRIEL ANTONIO MARTINEZ, Petitioner, 5 v. 6 7 SUZANNE M. PEERY, Acting Warden,1 Respondent. 8 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 10 U.S.C. § 2254 challenging his 2013 conviction in the Monterrey County Superior Court. Dkt. 1 at 11 United States District Court Northern District of California 9 1. Specifically, he was convicted of one count of involuntary manslaughter (Cal. Penal Code 12 § 192(b)). Id. at 2. He was also convicted of three counts of furnishing a controlled substance 13 (Cal. Health & Safety Code § 11352(a)), and of causing great bodily injury (Cal. Penal Code 14 § 12022.7(a)) with respect to two of these counts. Id. The trial court sentenced Petitioner to 15 eleven years and eight months in state prison. Id. 16 On October 29, 2015, Magistrate Judge Maria-Elena James issued an Order to Show 17 Cause. Dkt. 5. In the same Order, Petitioner’s motion for appointment of counsel was also denied 18 without prejudice to the Court’s sua sponte reconsideration of such a motion. Id. at 3. This action 19 was then reassigned to the undersigned Judge. Dkt. 8. Respondent has filed an answer to the 20 petition, and Petitioner has filed a traverse. Dkts. 13, 16. 21 Before the Court is Petitioner’s renewed motion for appointment of counsel, which was 22 submitted on the same date as his traverse. Dkt. 15. He specifically requests the appointment of 23 Patrick McKenna, Esq. of the Sixth District Appellate Project, by whom Petitioner was 24 represented in state court. It appears that Attorney McKenna has “substantially” assisted 25 Petitioner in preparing his pro se federal petition and has prepared the traverse to the answer 26 27 28 1 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. 1 without compensation. Dkt. 1-2 at 1; Dkt. 15 at 2-3. 2 The Sixth Amendment’s right to counsel does not apply in habeas corpus actions. See 3 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). The Court may, however, appoint 4 counsel to represent a habeas petitioner whenever “the court determines that the interests of justice 5 so require and such person is financially unable to obtain representation.” 18 U.S.C. 6 § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. 7 See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728. 8 9 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. 11 United States District Court Northern District of California 10 Dkt. 1 at 5. 12 The Court finds that the appointment of counsel is warranted in this action and that 13 Attorney McKenna is already familiar with the facts of the case and has prepared pleadings in 14 support of the petition. Therefore, the Court exercises its discretion to appoint Patrick McKenna, 15 Esq. of the Sixth District Appellate Project to represent Petitioner in this action, nunc pro tunc to 16 his preparation of the federal petition for filing. Petitioner’s renewed motion for appointment of 17 counsel is GRANTED. Dkt. 15. Counsel should seek reimbursement pursuant to 18 U.S.C. 18 § 3006A(d) and (e) via the Federal Public Defender’s Office. 19 The Clerk of the Court shall send a copy of this Order to Patrick McKenna, Esq., Sixth 20 District Appellate Project, 95 S. Market Street, Suite 570, San Jose, California 95113, to 21 Petitioner, to the Federal Public Defender, and to Respondent. 22 This Order terminates Docket No. 15. 23 IT IS SO ORDERED. 24 Dated: Octobwe 13, 2016 25 26 YVONNE GONZALEZ ROGERS United States District Judge 27 28 2

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