Dias v. Gipson
Filing
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ORDER TO SHOW CAUSE; Denying 3 Motion to Appoint Counsel ; Granting 2 Motion for Leave to Proceed in forma pauperis. The Clerk shall serve by certified mail a copy of this order and the petition and all attachments thereto on Respondent and Respondent's attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of this order on Petitioner. Signed by Judge Edward J. Davila on 12/6/2012. (ecg, COURT STAFF) (Filed on 12/6/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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CHAD DIAS,
Petitioner,
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vs.
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CONNIE GIPSON, Warden,
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Respondent.
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No. C 12-05146 EJD (PR)
ORDER TO SHOW CAUSE;
GRANTING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS;
DENYING APPOINTMENT OF
COUNSEL
(Docket Nos. 2 & 3)
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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has
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filed a motion for leave to proceed in forma pauperis and a motion to appoint counsel.
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(Docket Nos. 2 and 3.)
BACKGROUND
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According to the petition, Petitioner was found guilty by a jury in San Francisco
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County Superior Court of several charges, including murder, attempted murder and
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second degree robbery. (Pet. at 2.) Petitioner was sentenced to 32 years to life in state
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prison. (Id.)
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Petitioner appealed his conviction, and the state appellate court affirmed. (Id. at
Order to Show Cause; Granting IFP
05146Dias_osc&ifp.wpd
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3.) The state high court denied review. (Id.) Petitioner’s petition of habeas corpus was
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also denied by the California Supreme Court. (Id.)
Petitioner filed the instant federal habeas petition on October 3, 2012.
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DISCUSSION
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A.
Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a
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person in custody pursuant to the judgment of a State court only on the ground that he is
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in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).
It shall “award the writ or issue an order directing the respondent to show cause
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For the Northern District of California
United States District Court
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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.” Id. § 2243.
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B.
Legal Claims
Petitioner claims the following as grounds for federal habeas relief: (1) the trial
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court erred by denying his Wheeler/Batson motion; (2) trial counsel was ineffective for
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failing to present arguments regarding his prior trial on the same charge that resulted in
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a hung jury and for failing to lodge the transcripts from that trial; (3) trial counsel was
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ineffective for failing to properly counter the prosecution’s theory that Petitioner was
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guilty as an aider and abetter; and (4) the introduction of an aiding and abetting theory
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violated his right to Due Process, as the prosecution had previously taken the position
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that appellant was the shooter. Liberally construed, his claims are cognizable under §
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2254 and merit an answer from Respondent.
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C.
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Counsel
The Sixth Amendment’s right to counsel does not apply in habeas corpus actions.
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See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867
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(1986). Unless an evidentiary hearing is required, the decision to appoint counsel is
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within the discretion of the district court. See Knaubert, 791 F.2d at 728; Bashor v.
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05146Dias_osc&ifp.wpd
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Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). An
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evidentiary hearing does not appear necessary at this time, and there are no exceptional
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circumstances to warrant appointment of counsel. Accordingly, Petitioner’s motion for
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appointment of counsel is DENIED without prejudice to the Court’s sua sponte
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reconsideration should the Court later find an evidentiary hearing necessary following
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consideration of the merits of Petitioner’s claims.
CONCLUSION
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For the foregoing reasons and for good cause shown,
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1.
2), is GRANTED.
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For the Northern District of California
United States District Court
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Petitioner’s motion for leave to proceed in forma pauperis, (Docket No.
2.
Petitioner’s motion to appoint counsel, (Docket No. 3), is DENIED.
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3.
The Clerk shall serve by certified mail a copy of this order and the
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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
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order on Petitioner.
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4.
Respondent shall file with the court and serve on petitioner, within sixty
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(60) 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 issued. Respondent shall file with the answer and serve on Petitioner a
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copy of all portions of the state trial record that have been transcribed previously and
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that 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 thirty (30) days of his receipt of the
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answer.
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5.
Respondent may file a motion to dismiss on procedural grounds in lieu of
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an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules
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Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file
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with the Court and serve on Respondent an opposition or statement of non-opposition
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within thirty (30) days of receipt of the motion, and Respondent shall file with the
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court and serve on Petitioner a reply within fifteen (15) days of receipt of any
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opposition.
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6.
Petitioner is reminded that all communications with the court must be
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served on Respondent by mailing a true copy of the document to Respondent’s counsel.
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Petitioner must also keep the Court and all parties informed of any change
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of address.
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This order terminates Docket Nos. 2 and 3.
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DATED:
12/6/2012
EDWARD J. DAVILA
United States District Judge
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For the Northern District of California
United States District Court
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Order to Show Cause; Granting IFP
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
CHAD DIAS,
Case Number: CV12-05146 EJD
Plaintiff,
CERTIFICATE OF SERVICE
v.
CONNIE GIPSON et al,
Defendant.
/
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 December 6, 2012, 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.
Chad Dias G-44632 - 3a05-132U
CSP, Corcoran (1)
PO Box 3461
Corcoran, CA 93212-3461
Dated: December 6, 2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk
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