Turner v. Cate et al

Filing 8

ORDER TO SHOW CAUSE by Judge Lucy H. Koh denying 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel ; denying 5 Motion for TRO; denying 5 Motion for Order to Show Cause; denying 5 Motion for Hearing (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 11/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN B. TURNER,

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Petitioner,

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v.
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MATTHEW CATE, et al.,

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Respondents.

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No. C 11-4948 LHK (PR)
ORDER TO SHOW CAUSE;
DENYING MOTION FOR LEAVE
TO PROCEED IN FORMA
PAUPERIS; DENYING EX PARTE
MOTION FOR TEMPORARY
RESTRAINING ORDER;
DENYING MOTION TO APPOINT
COUNSEL
(Docket Nos. 2, 3, 5.)

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Petitioner, a former state prisoner proceeding pro se, filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner’s motion for leave to proceed in forma pauperis
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is DENIED. The Court orders Respondents to show cause why a writ of habeas corpus should
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not 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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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis; Denying Ex Parte Motion for
Temporary Restraining Order; Denying Motion to Appoint Counsel
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A district court shall “award the writ or issue an order directing the respondent to show

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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
In 1984, Petitioner pleaded nolo contendere to misdemeanor indecent exposure. (Pet. at

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4.) The victims were two minor females under the age of 14 years. (Id.) Petitioner was not

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required to register as a sex offender. (Id.) In 1986, Petitioner was discharged from probation

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upon request, and the court dismissed the conviction pursuant to California Penal Code §§ 1385

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and 13151.1(a). (Id.) In 1993, Petitioner was convicted of misdemeanor indecent exposure, and

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the victim was an adult female. (Id.) Petitioner was fined, sentenced to 30 days work release,

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and a 3-year term of probation. (Id.) Petitioner was not required to register as a sex offender.

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(Id.) In 1996, after completing probation, the 1993 conviction was expunged. (Id.) In 2002,

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Petitioner pleaded guilty to a misdemeanor concealed weapons charge. (Id.) In 2006, Petitioner

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pleaded guilty to five non-sex related felony charges, and sentenced to a term of seven years and

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eight months in state prison. (Id. at 4-5.)

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Effective November 8, 2006, California enacted “Jessica’s Law,” otherwise known as

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Proposition 83. Jessica’s Law prohibits registered sex offenders from residing within 2000 feet

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of a public or private school or park where children regularly gather. Cal. Penal Code

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§ 3003.5(b). Also in November 2006, Petitioner alleges that the California legislature enacted

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Penal Code § 290.007, which required him to register as a sex offender. (Id. at 12.)

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Petitioner was released from Avenal State Prison on January 5, 2010. (Id. at 5.) Upon

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his release, Petitioner complied with the sex offender registration requirement, as well as the

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residency restriction of Jessica’s Law. (Id. at 12.)

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Petitioner filed the instant federal habeas petition on October 6, 2011. In the petition,

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Petitioner challenges the constitutionality of the sex offender registration requirement, as well as

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the related residency restrictions propounded by Jessica’s Law, see Cal. Penal Code §§ 290,

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290.007, 3003.5(b), as they apply to him. Liberally construed, these claims are cognizable on

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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis; Denying Ex Parte Motion for
Temporary Restraining Order; Denying Motion to Appoint Counsel
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federal habeas review. The Court orders Respondents to show cause why the petition should not

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be granted as to the above issues. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001)

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(federal courts must construe pro se petitions for writs of habeas corpus liberally).1

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C.

Emergency Motion for Temporary Restraining Order (“TRO”)

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Petitioner requests an emergency TRO to enjoin Respondents from enforcing his

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registration and residency requirement pursuant to California Penal Code §§ 290, 290.007, and

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3003.5(b).

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Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary
injunction or TRO. Prior to granting a preliminary injunction, notice to the adverse party is

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required. See Fed. R. Civ. P. 65(a)(1). Therefore, a motion for preliminary injunction cannot be

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decided until the parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.

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1983). A TRO may be granted without written or oral notice to the adverse party or that party’s

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attorney only if: (1) it clearly appears from specific facts shown by affidavit or by the verified

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complaint that immediate and irreparable injury, loss or damage will result to the applicant

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before the adverse party or the party’s attorney can be heard in opposition, and (2) the

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applicant’s attorney certifies in writing the efforts, if any, which have been made to give notice

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and the reasons supporting the claim that notice should not be required. See Fed. R. Civ. P.

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65(b).

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The purpose of the preliminary injunction as provided by Rule 65 is to preserve the

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relative positions of the parties – the status quo ante – until a full trial on the merits can be

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conducted. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). On the other hand, “[a]

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mandatory injunction goes well beyond simply maintaining the status quo pendente lite [and] is

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particularly disfavored.” Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th

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But see In re E.J., 47 Cal. 4th 1258 (2010) (rejecting ex post facto challenge to
Jessica’s law brought by registered sex offenders who were on parole for non-sex offenses);
People v. Mosley, 188 Cal. App. 4th 1090 (2010) (distinguishing In re E.J. and concluding that
the sex offender registration and residency requirements imposed through a discretionary sex
offender registration was unconstitutional), petition for review granted by People v. Mosley, 121
Cal. Rptr. 3d 280 (2011).
Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis; Denying Ex Parte Motion for
Temporary Restraining Order; Denying Motion to Appoint Counsel
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Cir. 1994) (internal quotations, citations omitted). Petitioner argues what the status quo should

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be: his parole conditions should reflect only his current commitment offense rather than his

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expunged misdemeanor conviction. However, the status quo in this case at this time is that

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Petitioner is subject to additional conditions of parole and intensive supervision based on his

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status as a section 290 registrant. Accordingly, what he seeks is a mandatory injunction, which

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may be issued only upon a finding that the facts and law clearly favor him. Id. Petitioner has

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not made that showing. Compare Connecticut Department of Public Safety v. Doe, 538 U.S. 1

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(2003) (requirement that sex offenders register not subject to due process hearing); Smith v. Doe,

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538 U.S. 84 (2003) (Alaska sex offender registration law non-punitive, and so requiring

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registration even though offense occurred before enactment was not an ex post facto violation);

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United States v. Jackson, 189 F.3d 820 (9th Cir. 1999) (imposing mandatory drug testing as

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condition of supervised release did not violate ex post facto clause although conviction occurred

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before enactment); Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235 (3d Cir.

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1996) (sex offender registration did not violate ex post facto, double jeopardy, equal protection

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or due process clauses) with Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) (imposing sex

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offender treatment requirements on one never convicted of sex offense without notice or hearing

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violated due process).

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In addition, Petitioner has made no showing regarding any efforts made to afford the

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requisite notice to Respondents. See Fed. R. Civ. P. 65(b). The Ninth Circuit has cautioned that

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there are “very few circumstances justifying the issuance of an ex parte TRO.” See Reno Air

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Racing Assoc. Inc v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). For instance, notice may be

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excused where it “is impossible either because the identity of the adverse party is unknown or

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because a known party cannot be located in time for a hearing.” Id. Or, notice may not be

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required where providing “notice to the defendant would render fruitless the further prosecution

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of the action” because the adverse party is likely to destroy evidence. Id. Here, Petitioner has

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not demonstrated that either exception is applicable.

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Accordingly, Petitioner’s motion for an emergency TRO is DENIED without prejudice.

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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis; Denying Ex Parte Motion for
Temporary Restraining Order; Denying Motion to Appoint Counsel
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D.

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. Respondents

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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, Petitioner’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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CONCLUSION
1.

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.

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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 Respondents and the Respondents’ 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.

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

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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis; Denying Ex Parte Motion for
Temporary Restraining Order; Denying Motion to Appoint Counsel
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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 Respondents within thirty days of the date the answer is filed.

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4.

Respondents 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. Petitioner shall file with the court

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and serve on Respondents an opposition or statement of non-opposition within thirty days of the

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date the motion is filed, and Respondents shall file with the court and serve on Petitioner a reply

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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 Respondents by mailing a true copy of the

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document to Respondents’ 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

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41(b).

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IT IS SO ORDERED.
DATED:

11/14/11
LUCY H. KOH
United States District Judge

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Order to Show Cause; Denying Motion for Leave to Proceed in Forma Pauperis; Denying Ex Parte Motion for
Temporary Restraining Order; Denying Motion to Appoint Counsel
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