Howell v. Spearman

Filing 13

ORDER TO SHOW CAUSE. Habeas Answer due by 10/20/2014. Signed by Judge Ronald M. Whyte on 8/20/14. (jgS, COURT STAFF) (Filed on 8/21/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT G. HOWELL,

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Petitioner,
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vs.
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WARDEN M. SPEARMAN,
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Respondent.
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No. C 13-5176 RMW (PR)
ORDER TO SHOW CAUSE
(Docket No. 11.)

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Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. The court orders respondent to show cause why a
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writ of habeas corpus should not be granted.
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BACKGROUND
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According to the petition, petitioner was convicted after pleading guilty in Sonoma
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County Superior Court. Petitioner unsuccessfully appealed his convictions to the California
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Court of Appeal and the California Supreme Court. Petitioner also filed unsuccessful state
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habeas petitions. Petitioner brought this underlying habeas action on November 6, 2013.
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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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Order to Show Cause
P:\PRO-SE\RMW\HC.13\Howell176osc.wpd

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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 Claims

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As grounds for federal habeas relief, petitioner alleges that: (1) petitioner’s plea

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agreement was breached and petitioner is being imprisoned longer than the agreed upon

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sentence;1 (2) trial counsel rendered ineffective assistance; and (3) appellate counsel rendered

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ineffective assistance. Liberally construed, the court orders respondent to show cause why the

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petition should not be granted.

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To the extent that petitioner raises pre-plea claims of a violation of his speedy trial rights,

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and counsel’s alleged errors that occurred prior to petitioner’s guilty plea, those claims are

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waived. See United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (by pleading guilty

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defendant waived right to challenge pre-plea violation of Speedy Trial Act); Moran v. Godinez,

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57 F.3d 690, 700 (9th Cir. 1994) (refusing to consider contention that petitioner’s attorneys were

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ineffective because they failed to attempt to prevent the use of his confession as pre-plea

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constitutional violation); Washington v. Sobina, 475 F.3d 162, 166 (3d Cir. 2007) (“[T]he right

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to a speedy trial is non-jurisdictional, and is therefore waived by an unconditional and voluntary

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guilty plea.”). Accordingly, those claims are dismissed with prejudice.

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To the extent petitioner is requesting appointment of counsel, the request is DENIED for

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want of exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997);

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see also Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981) (there is no constitutional

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right to counsel in a civil case). This denial is without prejudice to the court’s sua sponte

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appointment of counsel at a future date should the circumstances of this case warrant such

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This claim encompasses petitioner’s Claims 1 and 2 as stated in his amended petition.

Order to Show Cause
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appointment.

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CONCLUSION

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1.

The clerk shall serve by mail a copy of this order and the amended petition

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(docket no. 9) and all attachments thereto upon the respondent and the respondent’s attorney, the

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Attorney 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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2.

Respondent shall file with the court and serve on petitioner, within sixty days of

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

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

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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underlying state criminal 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 date the answer is filed.

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3.

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 sixty 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 twenty-eight days of the date the motion is filed, and respondent shall file

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

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filed.

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4.

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 no. 11.
Order to Show Cause
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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order to Show Cause
P:\PRO-SE\RMW\HC.13\Howell176osc.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ROBERT G HOWELL,

Case Number: CV13-05176 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
SPEARMAN 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 August 21, 2014, 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.

Robert G Howell V72092
F.D.-48L
Correctional Training Facility
PO Box 686
Soledad, CA 93960-0686
Dated: August 21, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk