Scott v. Lewis

Filing 8

ORDER TO SHOW CAUSE by Judge Lucy H. Koh denying 6 Motion for Leave to Proceed in forma pauperis; denying 2 Motion to Appoint Counsel ; denying 3 Motion for Leave to Proceed in forma pauperis (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 10/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC D. SCOTT,

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Petitioner,

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v.
WARDEN G.D. LEWIS,

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Respondent.

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No. C 11-3128 LHK (PR)
ORDER TO SHOW CAUSE;
DENYING MOTIONS FOR LEAVE
TO PROCEED IN FORMA
PAUPERIS

(Docket Nos. 2, 3, 6.)

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. Petitioner’s motions for leave to proceed in forma pauperis are
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DENIED. The Court orders Respondent to show cause why a writ of habeas corpus should not
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be granted.
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DISCUSSION
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A.

Standard of Review

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
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custody pursuant to the judgment of a state court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose
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v. Hodges, 423 U.S. 19, 21 (1975).
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A district court shall “award the writ or issue an order directing the respondent to show
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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis
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cause why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

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Petitioner’s Claims
As grounds for relief, Petitioner claims that: (1) there was insufficient corroboration of

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accomplice testimony to convict him of murder; (2) the trial court improperly instructed the jury

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with CALCRIM No. 362 because the court failed to limit the instruction to extrajudicial or pre-

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trial statements; (3) the trial court improperly instructed the jury with CALCRIM 337 because

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that instruction enhanced the credibility of witness Troy Collins; and (4) Petitioner suffered

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cumulative prejudice. Liberally construed, Petitioner states cognizable claims for relief. The

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Court orders Respondent to show cause why the petition should not be granted as to the above

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issues.

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C.

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Appointment of Counsel
Petitioner has requested appointment of counsel in this action. However, the Sixth

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Amendment’s right to counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith,

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791 F.2d 722, 728 (9th Cir. 1986). While 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court

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to appoint counsel to represent a habeas petitioner if “the court determines that the interests of

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justice so require,” the courts have made appointment of counsel the exception rather than the

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rule. Appointment is mandatory only when the circumstances of a particular case indicate that

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appointed counsel is necessary to prevent due process violations. See Chaney v. Lewis, 801 F.2d

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1191, 1196 (9th Cir. 1986).

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Petitioner has thus far been able to adequately present his claims for relief. Respondent

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will produce the state record, which should include any state appellate briefs prepared by

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counsel. No evidentiary hearing appears necessary in this case, nor are any other extraordinary

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circumstances apparent. At this time, appointment of counsel is not mandated, and the interests

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of justice do not require appointment of counsel. Accordingly, Plaintiff’s request is DENIED.

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This denial is without prejudice to the Court’s sua sponte reconsideration should the

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developments of this case dictate otherwise.

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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis
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CONCLUSION
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Petitioner’s motion for leave to proceed in forma pauperis is DENIED. Petitioner

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must pay the $5.00 filing fee within thirty (30) days of the filing date of this order, or face

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dismissal of this action for failure to pay the filing fee. Petitioner’s request for an evidentiary

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hearing is DENIED without prejudice as premature.

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2.

The Clerk shall serve by mail a copy of this order and the petition (docket no. 1)

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and all attachments thereto upon the Respondent and the Respondent’s attorney, the Attorney

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General of the State of California. The Clerk shall also serve a copy of this order on Petitioner.

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3.

Respondent shall file with the Court and serve on Petitioner, within ninety days

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of the date this order is filed, 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

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granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of

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the underlying state criminal record that have been transcribed previously and that are relevant to

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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 with the
Court and serving it on Respondent within thirty days of the date the answer is filed.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within ninety days of the date this order is filed. If Respondent files such a motion,

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Petitioner shall file with the court and serve on Respondent an opposition or statement of non-

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opposition within thirty days of the date the motion is filed, and Respondent shall file with the

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court and serve on Petitioner a reply within fifteen days of the date any opposition is filed.

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5.

It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that

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all communications with the Court must be served on Respondent by mailing a true copy of the

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document to Respondent’s counsel. Petitioner must keep the court and all parties informed of

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any change of address by filing a separate paper captioned “Notice of Change of Address.” He

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must comply with the Court’s orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure
Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis
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41(b).

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IT IS SO ORDERED.
DATED: 10/21/11

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LUCY H. KOH
United States District Judge

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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis
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