Bell v. Davis

Filing 3

ORDER (1) Granting Request To Proceed In Forma Pauperis; (2) Granting Request For Appointment Of Counsel; And (3) Referring Matter To Selection Board For Suggestion Of Appointed Counsel (Re Dkt #s 1 , 2 ). Signed by Judge William Q. Hayes on 6/19/2 017. (Certified copies sent to: Petitioner, Atty Anthony Dain, Atty Miro F. Cizin, Habeas Corpus Resource Center; Respondent; Clerk of the San Diego County Superior Court; Xavier Becerra, Calif Atty Gen; Lynne McGinnis, Calif Deputy Atty Gen; Office of the District Atty of San Diego County; Joseph Schlesinger, Calif Appellate Project, San Francisco; Elaine Alexander, Appellate Defenders, Inc.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN M. BELL, Case No.: 17cv1051-WQH-JLB Petitioner, 12 13 v. 14 DEATH PENALTY CASE RONALD DAVIS, Warden of San Quentin State Prison 15 ORDER: (1) GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS; Respondent. 16 (3) GRANTING REQUEST FOR APPOINTMENT OF COUNSEL; AND 17 18 (3) REFERRING MATTER TO SELECTION BOARD FOR SUGGESTION OF APPOINTED COUNSEL 19 20 21 22 23 24 25 26 27 28 On May 23, 2017, Petitioner Steven M. Bell filed a request for appointment of counsel for federal habeas proceedings and an accompanying declaration. (ECF No. 1.) Petitioner has also filed a motion for leave to proceed in forma pauperis [“IFP”]. (ECF No. 2.) For the reasons discussed below, the Court GRANTS the request to proceed IFP, GRANTS the request for appointment of counsel, and REFERS the matter to the Selection Board for the Southern District of California for the recommendation of one or more attorneys for appointment. 1 17cv1051-WQH-JLB 1 I. BACKGROUND 2 Petitioner was convicted in San Diego County Superior Court of one count of first 3 degree murder with the special circumstances of robbery-murder and was sentenced to 4 death. On February 15, 2007, the California Supreme Court affirmed the convictions and 5 sentence on direct appeal. People v. Bell, 151 P.3d 292 (Cal. 2007). The petition for a 6 writ of certiorari was denied by the United States Supreme Court on October 1, 2007. Bell 7 v. California, 552 U.S. 826 (2007). 8 On March 29, 2007, Petitioner filed a habeas petition (Case No. S151362) with the 9 California Supreme Court, and on June 22, 2009, Petitioner filed an amended petition 10 accompanied by declarations and exhibits. An informal response was filed on October 15, 11 2009, and a reply was filed on September 28, 2010. The California Supreme Court issued 12 an order to show cause on January 21, 2014. A return was filed on May 14, 2014 and a 13 Traverse was filed on September 25, 2014. The California Supreme Court ordered a 14 reference hearing on November 12, 2014 and appointed a referee. After the hearing, the 15 referee submitted a report on March 21, 2016. After the submission of additional briefing, 16 the California Supreme Court held oral arguments on April 5, 2017. On June 8, 2017, the 17 California Supreme Court issued an opinion stating that “[b]ecause no misconduct has been 18 proven, we will discharge the order to show cause and, by separate order, deny Bell’s 19 petition for writ of habeas corpus.” In re Steven M. Bell on Habeas Corpus, ___ P. 3d ___, 20 2017 WL 2472824, at *1 (Cal. June 8, 2017). In that opinion, the California Supreme 21 Court also stated that “[b]ecause our order to show case and our reference order were 22 limited to this claim, we do not here address any other claim set forth in the petition. The 23 remaining claims will be resolved by a separately filed order.” Id. at *7. 24 II. REQUEST TO PROCEED IFP 25 With respect to the motion to proceed in forma pauperis, Petitioner has attached a 26 declaration and trust account statement, which reflects that Petitioner has $0.02 in his 27 account at San Quentin State Prison, where he is presently confined. (ECF No. 2 at 4.) 28 Petitioner cannot afford the $5.00 filing fee. Accordingly, the Court GRANTS Petitioner’s 2 17cv1051-WQH-JLB 1 motion for leave to proceed in forma pauperis and allows Petitioner to proceed in the 2 above-referenced matter without being required to prepay fees or costs and without being 3 required to post security. 4 III. REQUEST FOR APPOINTMENT OF COUNSEL 5 In a signed declaration dated May 1, 2017, Petitioner states that “[t]he habeas case 6 is currently under submission for decision, which will come within ninety days of oral 7 argument. At that point, the time for seeking federal habeas corpus review will begin 8 running.” (ECF No. 1 at 3.) Petitioner states that: “I am submitting a request for counsel 9 now in anticipation of this contingency,” and asserts that if his state petition is denied, he 10 intends to file a federal habeas petition and needs the assistance of counsel to prepare and 11 litigate a federal petition. Id. Petitioner also indicates that he has been advised that both 12 his state appellate counsel and his state habeas counsel are unavailable to represent him in 13 federal habeas proceedings and states that: “I am indigent and do not have the assets to 14 retain an attorney to represent me in these federal habeas corpus proceedings.” Id. 15 On June 8, 2017, during the pendency of the instant request, the California Supreme 16 Court issued an opinion discharging the order to show cause on the juror misconduct claim 17 and stated that it would resolve the remaining claims in the state habeas petition by separate 18 order. At present, the state docket does not indicate that any such separate order has been 19 filed and the state court’s website reflects the case status as: “opinion issued.” (See 20 21 1883040&doc_no=S151362, last visited June 16, 2017.) The Ninth Circuit has held that 22 “when . . . an appeal of a state criminal conviction is pending, a would-be petitioner must 23 await the outcome of his appeal before his state remedies are exhausted.” Sherwood v. 24 Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); see also 28 U.S.C. § 2254(b)-(c). As noted 25 above, Petitioner’s direct appeal is long concluded, as the United States Supreme Court 26 denied the petition for writ of certiorari in 2007. While Petitioner’s state habeas petition 27 remains pending before the California Supreme Court, the Ninth Circuit has clarified that 28 Sherwood applies only to pending direct appeals. See Henderson v. Johnson, 710 F.3d 3 17cv1051-WQH-JLB 1 872, 874 (9th Cir. 2013) (rejecting district court’s reliance on Sherwood to dismiss federal 2 habeas action filed while state habeas petition was pending without allowing leave to 3 amend or considering a stay, stating that “Sherwood stands for the proposition that a district 4 court may not adjudicate a federal petition while a petitioner’s direct state appeal is 5 pending.”). 6 The relevant federal statute, which provides for the appointment of counsel in capital 7 habeas actions, simply states that: “In any post conviction proceeding under section 2254 8 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any 9 defendant who is or becomes financially unable to obtain adequate representation or 10 investigative, expert, or other reasonably necessary services shall be entitled to the 11 appointment of one or more attorneys and the furnishing of such other services in 12 accordance with subsections (b) through (f).” 18 U.S.C. § 3599(a)(2). Meanwhile, this 13 district’s local rules provide for the appointment of federal capital habeas counsel “at the 14 earliest practicable time.” 15 Petitioner’s request for appointment of counsel appears reasonable and is therefore 16 GRANTED. 17 See CivLR HC.3(d)(1). Based on these considerations, IV. CONCLUSION AND ORDER 18 For the reasons discussed above, the Court GRANTS Petitioner’s motion to proceed 19 in forma pauperis and GRANTS Petitioner’s request for appointment of counsel. It is 20 HEREBY ORDERED that this matter be referred to the Selection Board for the United 21 States District Court, Southern District of California, for suggestion of one or more counsel 22 to be appointed to represent Petitioner in his federal habeas corpus proceedings. 23 The Clerk of the Court shall serve a certified copy of this order on Petitioner Steven 24 M. Bell; Attorney Anthony Dain; Attorney Miro F. Cizin, Habeas Corpus Resource Center; 25 Respondent Ron Davis, Warden of San Quentin Prison; the Clerk of the San Diego County 26 Superior Court; Xavier Becerra, Attorney General of the State of California; Lynne 27 McGinnis, Deputy Attorney General of the State of California; Office of the District 28 4 17cv1051-WQH-JLB 1 Attorney of San Diego County; Joseph Schlesinger, California Appellate Project, San 2 Francisco; and Elaine Alexander, Appellate Defenders, Inc. 3 IT IS SO ORDERED. 4 Dated: June 19, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 17cv1051-WQH-JLB

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