Wall v. Davis

Filing 3

ORDER: (1) Granting Motion for Leave to Proceed In Forma Pauperis; (2) Denying Request for Appointment of Counsel Without Prejudice; and (3) Dismissing Case Without Prejudice. Signed by Judge Cathy Ann Bencivengo on 5/9/2018. (Copies mailed)(All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RANDALL CLARK WALL,

Case No.: 18CV0858 CAB (PCL)
Petitioner,

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v.

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DEATH PENALTY CASE

RONALD DAVIS, Warden of San
Quentin State Prison

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ORDER:
(1) GRANTING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS;

Respondent.

(3) DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE; AND

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(3) DISMISSING CASE WITHOUT
PREJUDICE

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On May 3, 2018, Petitioner Randall Clark Wall filed a request for appointment of

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counsel to represent him in federal habeas corpus proceedings, a civil case cover sheet, and

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an accompanying declaration. (ECF No. 1.) Petitioner has also filed a motion for leave to

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proceed in forma pauperis [“IFP”]. (ECF No. 2.) For the reasons discussed below, the

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Court GRANTS the motion for leave to proceed IFP, DENIES the request for appointment

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of counsel without prejudice as premature, and DISMISSES the case without prejudice.

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Petitioner may refile his habeas action and renew his request for appointment of counsel

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after the conclusion of his pending proceedings.
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I. BACKGROUND

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Petitioner pleaded guilty to first degree murder, four special circumstances (multiple

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murder, murders in the commission of a robbery, murders committed while lying in wait,

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and murders in the commission of first degree burglary), in addition to robbery, conspiracy

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to commit robbery, burglary, and conspiracy to commit burglary, and was sentenced to

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death. On November 13, 2017, the California Supreme Court affirmed the convictions and

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sentence on direct appeal. People v. Wall, 3 Cal. 5th 1048 (2017). According to the

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California Supreme Court’s case information for Petitioner’s direct appellate proceeding

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(Case No. S044693), on April 16, 2018, that Court received a “Letter from U.S.S.C., dated

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April 10, 2018, advising the application for an extension of time within which to file a

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petition for writ of certiorari in this case has been presented to Justice Kennedy, who on

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April 10, 2018, extended the time to and including June 22, 2018.” (See Case No. S044693

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at http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0, last visited May 9, 2018.) The

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United States Supreme Court’s website similarly reflects that Petitioner’s current deadline

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for

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https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17

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a1085.html, last visited May 9, 2018.)

filing

a

petition

for

writ

of

certiorari

is

June

22,

2018.

(See

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On May 19, 2015, Petitioner filed a habeas petition (Case No. S226530) in the

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California Supreme Court accompanied by exhibits. An informal response was filed on

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January 19, 2016, and a reply was filed on March 24, 2017, also accompanied by exhibits.

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The state habeas petition remains pending before the California Supreme Court. (See Case

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No. S226530 at http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0, last visited May

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9, 2018.)

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II. REQUEST TO PROCEED IFP

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With respect to the motion for leave to proceed in forma pauperis, Petitioner has

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attached a declaration and trust account statement which reflects that Petitioner has $0.00

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in his account at San Quentin State Prison where he is presently confined. (ECF No. 2 at

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4.) Petitioner cannot afford the $5.00 filing fee. Accordingly, the Court GRANTS
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Petitioner’s motion and allows Petitioner to proceed in the above-referenced matter without

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being required to prepay fees or costs and without being required to post security.

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III. REQUEST FOR APPOINTMENT OF COUNSEL

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In a signed declaration dated March 21, 2018, Petitioner states that his direct appeal

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case is “closed” but notes that: “I believe that my appellate lawyer plans to file a petition

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for a writ of certiorari in the United States Supreme Court in the near future.” (ECF No.

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1-2 at 1.) Petitioner also states that: “The California Supreme Court has not yet ruled on

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my habeas corpus petition. If the California Supreme Court denies my habeas corpus

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petition, the time for seeking federal habeas review will begin running.” (Id. at 2.)

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Petitioner states that: “I am submitting a request for federal habeas corpus counsel now in

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anticipation of this contingency,” and states that he intends to file a federal habeas petition

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and needs the assistance of counsel to prepare and litigate a federal petition. (Id.) Petitioner

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indicates that: “I have been advised that the attorneys who represented me in the state direct

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appeal, the Office of the State Public Defender, and in the state habeas corpus proceedings,

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the Habeas Corpus Resource Center, are not able to represent me in these federal habeas

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corpus proceedings,” and states: “I am indigent and do not have the assets to retain an

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attorney to represent me in these federal habeas corpus proceedings.” (Id.)

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Yet, upon review, it is evident that in addition to his pending state habeas

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proceedings, Petitioner’s direct appellate proceedings do not appear to be concluded.

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Petitioner acknowledges that his appellate counsel intends to file a petition for a writ of

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certiorari, and both the California Supreme Court’s and United States Supreme Court’s

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dockets reflect that the deadline for that filing was recently extended to June 22, 2018. 28

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U.S.C. § 2244(d)(1)(A) provides in relevant part that the 1-year statute of limitations for

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filing a federal habeas petition “shall run from the latest of” several dates, one of which is

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“the date on which the judgment became final by the conclusion of direct review or the

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expiration of the time for seeking such review.” The Supreme Court has noted that: “The

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Courts of Appeal have uniformly interpreted ‘direct review’ in § 2244(d)(1)(A) to

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encompass review of a state conviction by this Court.” Clay v. United States, 537 U.S.
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522, 528 n. 3 (2003) (collecting cases); see Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th

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Cir. 1999) (“We hold that the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A)

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includes the period within which a petitioner can file a petition for a writ of certiorari from

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the United States Supreme Court, whether or not the petitioner actually files such a

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petition.”) Because the United States Supreme Court has neither affirmed Petitioner’s

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conviction, denied a petition for writ of certiorari, nor has time expired for Petitioner to

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seek such review, Petitioner’s judgment is not yet final. See Gonzalez v. Thaler, 565 U.S.

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134, 150 (2012) (“For petitioners who pursue direct review all the way to this Court, the

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judgment becomes final at the ‘conclusion of direct review’- when this Court affirms a

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conviction on the merits or denies a petition for certiorari. For all other petitioners, the

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judgment becomes final at the ‘expiration of the time for seeking such review’- when the

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time for pursuing direct review in this Court, or in state court, expires.”)

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While the Local Rule concerning capital habeas corpus proceedings indicates that

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“counsel must be appointed in every such case at the earliest practicable time,” it also

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appears to acknowledge that the process of appointing counsel will typically take place

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after the completion of state proceedings. See CivLR HC.3(d)(1) (“When a death judgment

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is affirmed by the California Supreme Court and any subsequent proceedings in the state

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courts have concluded, . . .”) Given that neither Petitioner’s direct review nor state habeas

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proceedings are completed, the Court is not persuaded that appointment of counsel is

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appropriate at this time.

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III. CONCLUSION AND ORDER
For the reasons discussed above, Petitioner’s motion for leave to proceed IFP is
Petitioner’s request for appointment of counsel is DENIED without

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GRANTED.

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prejudice as premature. The instant habeas case is DISMISSED without prejudice.

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Petitioner may refile the action and renew his request for appointment of counsel after the

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conclusion of his pending proceedings.

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The Clerk of the Court shall serve a certified copy of this order on Petitioner Randall

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Clark Wall; Attorney Andrea Asaro, Office of the State Public Defender; Attorney Miro
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Cizin, Habeas Corpus Resource Center; Respondent Ronald Davis, Warden of San Quentin

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Prison; the Clerk of the San Diego County Superior Court; Xavier Becerra, Attorney

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General of the State of California; Teresa Torreblanca, Deputy Attorney General of the

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State of California; Summer Stephan, District Attorney of San Diego County; Joseph

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Schlesinger, California Appellate Project San Francisco; and Elaine Alexander, Appellate

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Defenders, Inc.

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IT IS SO ORDERED.

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Dated: May 9, 2018

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