1 2 3 4 5 6 7 10 11 ALEXANDER JACOME, Case No.: 21-CV-2083 JLS (MSB) CDCR #BD-1845, 12 ORDER: (1) DENYING MOTION TO Petitioner, 13 PROCEED IN FORMA PAUPERIS; v. (2) DENYING MOTION TO 14 APPOINT COUNSEL; AND
15 (3) DISMISSING SECOND IRS OF CALIFORNIA, et al., AMENDED PETITION FOR WRIT 16 Respondents. OF HABEAS CORPUS WITHOUT 18 19 20 21 22 On December 2, 2021, Petitioner Alexander Jacome (“Petitioner”), a state prisoner 23 proceeding pro se, filed this action pursuant to the All Writs Act, 28 U.S.C. § 1651, but 24 failed to pay the $402 civil filing fee or submit a request to proceed in forma pauperis 25 (“IFP”). See ECF No. 1. Petitioner sought a writ of mandate from this Court directing his 26 early release from state custody and requiring payment of his “stimulus money.” Id. at 1– 27 3. On December 16, 2021, the Court dismissed this action without prejudice for failure to 28 satisfy the filing fee requirement. See ECF No. 2. 1 On December 28, 2021, Petitioner filed a document titled “Amended Federal Habeas 2 Corpus 2254. Application to Proceed ‘In Forma Pauperis.’” See ECF No. 3. In that 3 document, Petitioner stated that he wished to have this action challenging his state court 4 conviction construed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 5 § 2254. Id. at 1–2. On January 6, 2022, the Court denied Petitioner’s application to 6 proceed IFP because it was not accompanied by the required financial documentation. See 7 ECF No. 4. 8 On January 20, 2022, Petitioner filed a Motion to Amend/Correct in which he 9 requested this action be retitled as a Petition for a Writ of Habeas Corpus pursuant to 28 10 U.S.C. § 2254, along with a motion to proceed IFP. See ECF Nos. 5 & 6. On January 31, 11 2022, the Court granted Petitioner’s request to retitle this action as a Petition for a Writ of 12 Habeas Corpus pursuant to 28 U.S.C. § 2254 and denied his IFP application because it 13 once again failed to include the required financial documentation. See ECF No. 7. 14 On February 7, 2022, Petitioner filed a Second Amended Petition for a Writ of 15 Habeas Corpus, a Motion for Leave to Proceed IFP, and a Motion to Appoint Counsel. See 16 ECF Nos. 8–10. 18 The filing fee for a petition for a writ of habeas corpus is $5.00, and the action may 19 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 20 pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 F.3d 21 1047, 1051 (9th Cir. 2007). A request to proceed IFP from a prisoner must include a 22 certificate from the warden or other appropriate officer showing the amount of money or 23 securities the petitioner has on account in the institution. See Rule 3(a), 28 U.S.C. foll. 24 § 2254; 28 U.S.C. § 1915(a)(2). The Court’s prior orders denying leave to proceed IFP 25 have twice notified Petitioner of the requirement that he must submit a prison certificate. 26 See ECF No. 4 at 2; ECF No. 7 at 2. Yet, he has once again failed to submit the required 27 prison certificate. See generally ECF No. 9. Accordingly, the Court DENIES Petitioner’s 28 Motion to Proceed IFP. 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. Petitioner states that he is challenging a conviction from 5 the San Diego County Superior Court for assault likely to cause great bodily injury arising 6 from a guilty plea he entered on June 30, 2021. See ECF No. 8 at 1–2. Although Petitioner 7 has used this Court’s approved 28 U.S.C. § 2254 petition form, he has substituted several 8 handwritten pages in place of the pages used in the form to identify his claims and the 9 factual basis for them. See ECF No. 8 at 6–8. Petitioner asks the Court to report fraud in 10 his state criminal proceedings to the Federal Bureau of Investigation, and although he 11 contends the fraud is obvious, nowhere does he identify it or any claim he wishes to raise 12 in this Court other than an incomprehensible reference to restoration of custody credits. 13 See id. 14 Subsection 2254(a) of Title 28 of the United States Code sets forth the following 15 scope of review for federal habeas corpus claims: 16 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 17 behalf of a person in custody pursuant to the judgment of a State 18 court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 19
20 28 U.S.C. § 2254(a); see Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt 21 v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463, 22 1464–65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under 23 section 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment 24 of a State court” and that he is in custody in “violation of the Constitution or laws or treaties 25 of the United States.” See 28 U.S.C. § 2254(a). 26 Although Petitioner states that he is in custody pursuant to a state court conviction, 27 in no way does he claim he is “in custody in violation of the Constitution or laws or treaties 28 / / / 1 of the United States.” 28 U.S.C. § 2254. Accordingly, the Second Amended Petition fails 2 to state a cognizable federal habeas claim. 4 Petitioner requests the appointment of counsel due to his inability to afford an 5 attorney, the complexity of the issues involved, and the difficulties litigating this case in 6 light of the Covid-19 pandemic. See ECF No. 10 at 1. The Sixth Amendment right to 7 counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. 8 Zant, 499 U.S. 467, 495 (1991); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 9 Financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may 10 obtain representation when “the district court ‘determines that the interests of justice so 11 require.’” Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990), quoting 18 U.S.C.
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1 2 3 4 5 6 7 10 11 ALEXANDER JACOME, Case No.: 21-CV-2083 JLS (MSB) CDCR #BD-1845, 12 ORDER: (1) DENYING MOTION TO Petitioner, 13 PROCEED IN FORMA PAUPERIS; v. (2) DENYING MOTION TO 14 APPOINT COUNSEL; AND
15 (3) DISMISSING SECOND IRS OF CALIFORNIA, et al., AMENDED PETITION FOR WRIT 16 Respondents. OF HABEAS CORPUS WITHOUT 18 19 20 21 22 On December 2, 2021, Petitioner Alexander Jacome (“Petitioner”), a state prisoner 23 proceeding pro se, filed this action pursuant to the All Writs Act, 28 U.S.C. § 1651, but 24 failed to pay the $402 civil filing fee or submit a request to proceed in forma pauperis 25 (“IFP”). See ECF No. 1. Petitioner sought a writ of mandate from this Court directing his 26 early release from state custody and requiring payment of his “stimulus money.” Id. at 1– 27 3. On December 16, 2021, the Court dismissed this action without prejudice for failure to 28 satisfy the filing fee requirement. See ECF No. 2. 1 On December 28, 2021, Petitioner filed a document titled “Amended Federal Habeas 2 Corpus 2254. Application to Proceed ‘In Forma Pauperis.’” See ECF No. 3. In that 3 document, Petitioner stated that he wished to have this action challenging his state court 4 conviction construed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 5 § 2254. Id. at 1–2. On January 6, 2022, the Court denied Petitioner’s application to 6 proceed IFP because it was not accompanied by the required financial documentation. See 7 ECF No. 4. 8 On January 20, 2022, Petitioner filed a Motion to Amend/Correct in which he 9 requested this action be retitled as a Petition for a Writ of Habeas Corpus pursuant to 28 10 U.S.C. § 2254, along with a motion to proceed IFP. See ECF Nos. 5 & 6. On January 31, 11 2022, the Court granted Petitioner’s request to retitle this action as a Petition for a Writ of 12 Habeas Corpus pursuant to 28 U.S.C. § 2254 and denied his IFP application because it 13 once again failed to include the required financial documentation. See ECF No. 7. 14 On February 7, 2022, Petitioner filed a Second Amended Petition for a Writ of 15 Habeas Corpus, a Motion for Leave to Proceed IFP, and a Motion to Appoint Counsel. See 16 ECF Nos. 8–10. 18 The filing fee for a petition for a writ of habeas corpus is $5.00, and the action may 19 proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted 20 pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 F.3d 21 1047, 1051 (9th Cir. 2007). A request to proceed IFP from a prisoner must include a 22 certificate from the warden or other appropriate officer showing the amount of money or 23 securities the petitioner has on account in the institution. See Rule 3(a), 28 U.S.C. foll. 24 § 2254; 28 U.S.C. § 1915(a)(2). The Court’s prior orders denying leave to proceed IFP 25 have twice notified Petitioner of the requirement that he must submit a prison certificate. 26 See ECF No. 4 at 2; ECF No. 7 at 2. Yet, he has once again failed to submit the required 27 prison certificate. See generally ECF No. 9. Accordingly, the Court DENIES Petitioner’s 28 Motion to Proceed IFP. 2 Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, 3 Petitioner has failed to allege that his state court conviction or sentence violates the 4 Constitution of the United States. Petitioner states that he is challenging a conviction from 5 the San Diego County Superior Court for assault likely to cause great bodily injury arising 6 from a guilty plea he entered on June 30, 2021. See ECF No. 8 at 1–2. Although Petitioner 7 has used this Court’s approved 28 U.S.C. § 2254 petition form, he has substituted several 8 handwritten pages in place of the pages used in the form to identify his claims and the 9 factual basis for them. See ECF No. 8 at 6–8. Petitioner asks the Court to report fraud in 10 his state criminal proceedings to the Federal Bureau of Investigation, and although he 11 contends the fraud is obvious, nowhere does he identify it or any claim he wishes to raise 12 in this Court other than an incomprehensible reference to restoration of custody credits. 13 See id. 14 Subsection 2254(a) of Title 28 of the United States Code sets forth the following 15 scope of review for federal habeas corpus claims: 16 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 17 behalf of a person in custody pursuant to the judgment of a State 18 court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 19
20 28 U.S.C. § 2254(a); see Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt 21 v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463, 22 1464–65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under 23 section 2254, a state prisoner must allege both that he is in custody pursuant to a “judgment 24 of a State court” and that he is in custody in “violation of the Constitution or laws or treaties 25 of the United States.” See 28 U.S.C. § 2254(a). 26 Although Petitioner states that he is in custody pursuant to a state court conviction, 27 in no way does he claim he is “in custody in violation of the Constitution or laws or treaties 28 / / / 1 of the United States.” 28 U.S.C. § 2254. Accordingly, the Second Amended Petition fails 2 to state a cognizable federal habeas claim. 4 Petitioner requests the appointment of counsel due to his inability to afford an 5 attorney, the complexity of the issues involved, and the difficulties litigating this case in 6 light of the Covid-19 pandemic. See ECF No. 10 at 1. The Sixth Amendment right to 7 counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. 8 Zant, 499 U.S. 467, 495 (1991); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 9 Financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may 10 obtain representation when “the district court ‘determines that the interests of justice so 11 require.’” Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990), quoting 18 U.S.C. 12 § 3006A(a)(2)(B). Appointment of counsel is discretionary where no evidentiary hearing 13 or discovery is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728. 14 “Indigent state prisoners applying for habeas relief are not entitled to appointed 15 counsel unless the circumstances of a particular case indicate that appointed counsel is 16 necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1101, 1196 (9th 17 Cir. 1986); Knaubert, 791 F.2d at 728–29. Failure to appoint counsel may result in a due 18 process violation if the issues involved are too complex for the petitioner. Hawkins v. 19 Bennett, 423 F.2d 948, 950 (8th Cir. 1970). “A district court should consider the legal 20 complexity of the case, the factual complexity of the case, the petitioner’s ability to 21 investigate and present his claim, and any other relevant factors.” Abdullah v. Norris, 18 22 F.3d 571, 573 (8th Cir. 1994). 23 Here, Petitioner has not demonstrated his financial eligibility for appointed counsel 24 given that he has failed to submit the required prison certificate to support his Motion to 25 Proceed IFP. See generally ECF No. 9. Further, the interests of justice do not warrant the 26 appointment of counsel at this time because Petitioner has not yet articulated his claims. 27 Accordingly, the Court DENIES WITHOUT PREJUDICE Petitioner’s Motion to 28 Appoint Counsel. Petitioner may renew his request at a later time. I CONCLUSION AND ORDER 2 In light of the foregoing, the Court DENIES Petitioner’s Motion to Proceed in 3 || Forma Pauperis (ECF No. 9) and his Motion to Appoint Counsel (ECF No. 10). The Court 4 ||also DISMISSES WITHOUT PREJUDICE Petitioner’s Second Amended Petition for a 5 || Writ of Habeas Corpus for failure to state a claim cognizable on federal habeas. 6 If Petitioner wishes to proceed with this action, he must, on or before March 14, 7 ||2022, either: (a) prepay the $5.00 filing fee or (b) complete and file a Motion to Proceed in 8 || Forma Pauperis that complies with 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2(b); 9 || and file a Third Amended Petition for a Writ of Habeas Corpus identifying and articulating 10 cognizable federal claim. The Clerk of the Court SHALL PROVIDE Petitioner with 11 Court’s approved form motion to proceed in forma pauperis and the Court’s Amended 12 || Petition (28 U.S.C. § 2254) form together with a copy of this Order. If Petitioner fails to 13 || timely prepay the filing fee or timely complete and submit the enclosed Motion to Proceed 14 Forma Pauperis and/or fails to timely file an amended petition, the Court will enter 15 final judgment of dismissal. 17 Dated: February 9, 2022 . tt f te 18 on. Janis L. Sammartino 19 United States District Judge 20 21 22 23 24 25 26 27 28