Brown v. Hedgpath

Filing 14

ORDER Granting 8 Motion to Re-Open Case; ORDER TO SHOW CAUSE; Denying Motion 11 for Appointment of Counsel. Habeas Answer due by 7/12/2013. Signed by Judge Ronald M. Whyte on 5/13/13. (jg, COURT STAFF) (Filed on 5/13/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TIMOTHY WILLIAM BROWN,

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Petitioner,
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vs.

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ANTHONY HEDGPETH,
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Respondent.
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No. C 12-0362 RMW (PR)
ORDER GRANTING MOTION TO
RE-OPEN CASE; ORDER TO SHOW
CAUSE; DENYING MOTION FOR
APPOINTMENT OF COUNSEL

(Docket Nos. 8, 11)

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, and a motion to stay and hold the proceedings in abeyance.
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On April 5, 2012, the court granted petitioner’s request for a stay and administratively closed
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this case. On December 26, 2012, petitioner filed a motion to re-open the case, and on February
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14, 2013, petitioner filed an amended petition. Accordingly, the court will GRANT petitioner’s
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motion to re-open the instant action. The court further orders respondent to show cause why the
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amended petition should not be granted.
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BACKGROUND
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In 2008, petitioner was convicted of a 1979 first degree murder. Petitioner was sentenced
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to life without the possibility of parole. Petitioner’s conviction and judgment were affirmed
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Order Motion to Re-Open Case; Order to Show Cause; Denying Motion for Appointment of Counsel
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through the state appellate process. Petitioner also applied for post-conviction relief using the

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state habeas process without success.

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DISCUSSION
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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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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.

Petitioner’s Cognizable Claims

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As grounds for federal habeas relief, petitioner claims: (1) the application of Propositions

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8 and 115 to his crimes, the denial of his “Hitch” application, and the use of Evidence Code 1108

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violated the Ex Post Facto Clause; (2) petitioner’s prosecution was brought outside the statute of

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limitations, violating the principles in Stogner v. California, 539 U.S. 607 (2003); (3) petitioner’s

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due process rights were violated by the State’s failure to preserve the vaginal wash evidence, and

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the trial court’s allowance of the State to use the destroyed evidence at trial; (4) introduction of

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uncharged offenses violated petitioner’s due process rights; (5) the jury instructions regarding

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the uncharged offenses violated petitioner’s due process rights; (6) trial counsel rendered

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ineffective assistance; (7) the prosecution failed to establish a proper “chain of custody” for

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evidence, and the trial court erred in admitting testimony regarding that evidence; (8) the trial

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court’s denial of petitioner’s discovery request and exclusion of evidence of third party

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culpability violated petitioner’s right to present a defense and/or right to due process; (9)

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appellate counsel rendered ineffective assistance of counsel; (10) the evidence was insufficient to

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convict petitioner of murder and the personal use of a weapon; (11) the exclusion of testimony

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from petitioner’s preliminary hearing violated his right to present a defense and/or right to due

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process; (12) the prosecution violated Griffin v. California, 380 U.S. 609 (1965); (13) the
Order Motion to Re-Open Case; Order to Show Cause; Denying Motion for Appointment of Counsel
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prosecution committed misconduct by mischaracterizing the definition of “reasonable doubt”;

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and (14) cumulative error renders the trial fundamentally unfair. Liberally construed,

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petitioner’s allegations are sufficient to require a response. The court orders respondent to show

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cause why the petition should not be granted.

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However, petitioner’s claim (Pet. at 136-139) that the taking of his blood and/or saliva

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samples violated the Fourth Amendment is not cognizable in federal habeas review. Stone v.

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Powell, 428 U.S. 465, 481-82, 494 (1976) (barring federal habeas review of Fourth Amendment

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claims unless the state did not provide an opportunity for full and fair litigation of those claims).

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C.

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Motion to Appoint Counsel
The Sixth Amendment’s right to counsel does not apply in habeas corpus actions.

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

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authorizes a district court to appoint counsel to represent a habeas petitioner if “the court

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determines that the interests of justice so require,” the courts have made appointment of counsel

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the exception rather than the rule. Appointment is mandatory only when the circumstances of a

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particular case indicate that appointed counsel is necessary to prevent due process violations.

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See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Petitioner has thus far been able to

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adequately present his claims for relief. No evidentiary hearing appears necessary in this case,

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nor are any other extraordinary circumstances apparent. Accordingly, the court concludes that

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appointment of counsel is not necessary at this time. Petitioner’s motion for appointment of

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counsel is DENIED without prejudice.

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CONCLUSION
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The clerk shall lift the stay and administratively RE-OPEN this action. Petitioner’s

motion to appoint counsel is DENIED without prejudice.
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The clerk shall serve by mail a copy of this order and the amended petition (docket

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no. 12), and all attachments thereto upon the respondent and 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 the

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petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within ninety

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days of the filing date of this order, 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 state trial record that have been transcribed previously and that are relevant to a

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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 filing date of the answer.

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4.

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 filing date of this order. 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 twenty-eight days of the filing date of the motion, and respondent shall file

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with the court and serve on petitioner a reply within fourteen days of the filing date of any

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opposition.

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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 any

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

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

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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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This order terminates docket nos 8 and 11.

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IT IS SO ORDERED.

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Dated:
RONALD M. WHYTE
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY WILLIAM BROWN,

Case Number: CV12-00362 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
ANTHONY HEDGPATH et al,
Defendant.

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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 May 13, 2013, 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.

Timothy William Brown G-38339
Salinas Valley State Prison
A4-129-L
P.O. Box 1050
Soledad, CA 93960-1050
Dated: May 13, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk