Olea v. Warden Salinas Valley State Prison et al

Filing 6

ORDER TO SHOW CAUSE; ORDER by Judge Lucy H. Koh denying 3 Motion to Appoint Counsel (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 4/10/2012)

1
2
3
4
5
6
7
8

NOT FOR CITATION

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11
ANIANO OLEA,
12
Petitioner,
13
vs.
14
15

WARDEN SALINAS VALLEY STATE
PRISON,

16

Respondent.

)
)
)
)
)
)
)
)
)
)
)

No. C 12-0148 LHK (PR)
ORDER TO SHOW CAUSE;
DENYING MOTION TO APPOINT
COUNSEL
(Docket No. 3)

17
18

Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus

19

pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. The Court orders Respondent to

20

show cause why a writ of habeas corpus should not be granted.

21
22
23

DISCUSSION
A.

Standard of Review
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

24

custody pursuant to the judgment of a state court only on the ground that he is in custody in

25

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose

26

v. Hodges, 423 U.S. 19, 21 (1975).

27
28

A district court shall “award the writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it appears from the application that the
Order to Show Cause; Denying Motion to Appoint Counsel
G:\PRO-SE\SJ.LHK\HC.12\Olea148osc.wpd

1

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

2

B.

Petitioner’s Claims

3

Petitioner raises the following claims in his petition: (1) trial counsel rendered

4

ineffective assistance; (2) appellate counsel rendered ineffective assistance; (3) Petitioner was

5

denied a fair trial when the trial court discharged a “holdout” juror, and the prosecutor

6

committed misconduct; and (4) Petitioner was prejudiced from the cumulative effect of the

7

errors. Liberally construed, Petitioner’s allegations are sufficient to warrant a response.

8

C.

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

1191, 1196 (9th Cir. 1986). At this time, appointment of counsel is not mandated, and the

17

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

18

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

19

developments of this case dictate otherwise.

20

D.

21

Request to File Amended Petition
Petitioner also requests permission to file exhibits in support of Petitioner’s petition. It is

22

unclear what documents Petitioner wishes to submit in support of his petition that total 1027

23

pages. If Petitioner wishes to file an amended petition, he may do so within thirty days of the

24

filing date of this order.
CONCLUSION

25
26

1.

The Clerk shall serve by mail a copy of this order and the petition and all

27

attachments thereto (docket nos. 1, 2) upon the Respondent and the Respondent’s attorney, the

28

Attorney General of the State of California. The Clerk shall also serve a copy of this order on
Order to Show Cause; Denying Motion to Appoint Counsel
G:\PRO-SE\SJ.LHK\HC.12\Olea148osc.wpd

2

1

Petitioner.

2

2.

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

3

of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules

4

Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

5

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

6

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

7

a determination of the issues presented by the petition.

8
9

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.

10

3.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

11

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

12

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

13

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

14

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

15

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

16

4.

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

17

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

18

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

19

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

20

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

21

dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

22

41(b).

23

IT IS SO ORDERED.
4/9/12
DATED:

24

LUCY H. KOH
United States District Judge

25
26
27
28
Order to Show Cause; Denying Motion to Appoint Counsel
G:\PRO-SE\SJ.LHK\HC.12\Olea148osc.wpd

3