Israel v. Wofford
Filing
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ORDER FOR RESPONDENT TO SHOW CAUSE. (Certificate of Service Attached) Signed by Judge Phyllis J. Hamilton on 7/27/16. (napS, COURT STAFF) (Filed on 7/27/2016) Modified on 7/27/2016 (napS, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MAX L. ISRAEL,
Petitioner,
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C. WOFFORD,
Re: Dkt. No. 5
Respondent.
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United States District Court
Northern District of California
ORDER FOR RESPONDENT TO
SHOW CAUSE
v.
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Case No. 16-cv-02826-PJH
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Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, challenging a resentencing. The resentencing
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occurred in Santa Clara County, which is in this district, so venue is proper here. See 28
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U.S.C. § 2241(d). The petition was dismissed with leave to amend and petitioner has
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filed an amended petition.
BACKGROUND
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In 2005 a jury convicted petitioner of carjacking and related counts for using a
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firearm. Petitioner was sentenced to 75 years to life in prison consecutive to 10 years. In
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2012, petitioner sought relief in state superior court for resentencing under Proposition
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36, the Three Strikes Reform Act. Petitioner was appointed counsel and was
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resentenced to 25 years to life in prison consecutive to 13 years and four months.
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Petitioner’s appeals to the California Court of Appeal and California Supreme Court were
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denied.
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DISCUSSION
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STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus “in behalf of a person
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in custody pursuant to the judgment of a State court only on the ground that he is in
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custody 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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United States District Court
Northern District of California
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pursuant to a judgment of a state court must “specify all the grounds for relief available to
the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the
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)).
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LEGAL CLAIMS
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As grounds for federal habeas relief, petitioner asserts that: (1) there were various
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sentencing errors resulting in a violation of the Sixth Amendment; and (2) he was denied
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counsel. Liberally construed, these claims are sufficient to proceed.
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Petitioner also seeks the appointment of counsel. The Sixth Amendment's right to
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counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722,
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728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) provides that in habeas cases,
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whenever “the court determines that the interests of justice so require”, representation
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may be provided for any financially eligible person. Petitioner has presented his claims
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adequately, and they are not particularly complex. The interests of justice do not require
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appointment of counsel.
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CONCLUSION
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1.
The motion to appoint counsel (Docket No. 5) is DENIED.
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2.
The clerk shall serve by regular mail a copy of this order and the amended
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petition and all attachments thereto on respondent and respondent’s attorney, the
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Attorney General of the State of California. The clerk also shall serve a copy of this order
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on petitioner.
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3.
Respondent shall file with the court and serve on petitioner, within fifty-six
(56) days of the issuance of this order, an answer conforming in all respects to Rule 5 of
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the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus
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should not be granted. Respondent shall file with the answer and serve on petitioner a
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United States District Court
Northern District of California
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copy of all portions of the state trial record that have been transcribed previously and that
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are relevant 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
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with the court and serving it on respondent within twenty-eight (28) days of his receipt of
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the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu of
an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
Governing Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56)
days from the date this order is entered. If a motion is filed, petitioner shall file with the
court and serve on respondent an opposition or statement of non-opposition within
twenty-eight (28) days of receipt of the motion, and respondent shall file with the court
and serve on petitioner a reply within fourteen (14) days of receipt of any opposition.
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5.
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Petitioner is reminded that all communications with the court must be
served on respondent by mailing a true copy of the document to respondent’s counsel.
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Petitioner must keep the court informed of any change of address and must comply with
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the court’s orders in a timely fashion. Failure to do so may result in the dismissal of this
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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See
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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas
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cases).
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IT IS SO ORDERED.
Dated: July 27, 2016
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PHYLLIS J. HAMILTON
United States District Judge
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United States District Court
Northern District of California
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MAX L. ISRAEL,
Case No. 16-cv-02826-PJH
Plaintiff,
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v.
CERTIFICATE OF SERVICE
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C. WOFFORD,
Defendant.
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United States District Court
Northern District of California
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk,
U.S. District Court, Northern District of California.
That on July 27, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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Max L. Israel ID: P-38715
E2-220
1 Kings Way
Avenal, CA 93204
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Dated: July 27, 2016
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Susan Y. Soong
Clerk, United States District Court
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By:________________________
Nichole Peric, Deputy Clerk to the
Honorable PHYLLIS J. HAMILTON
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