1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROY D. LACY, Case No. 20-cv-03036-HSG
8 Petitioner, ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN 9 v. FORMA PAUPERIS; DENYING REQUEST FOR APPOINTMENT OF 10 PAUL MYAMOTO, COUNSEL 11 Respondent. Re: Dkt. Nos. 2, 9
12 13 Petitioner, a state prisoner incarcerated at San Francisco County Jail, has filed a pro se 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction from 15 Marin County Superior Court. Dkt. No. 1 at 1. His request to proceed in forma pauperis is 16 GRANTED. Dkt. No. 2. 17 BACKGROUND 18 Petitioner was convicted by a Marin County jury of robbery (Cal. Penal Code § 211). Dkt. 19 No. 1 at 2. In February 2016, petitioner was sentenced to 105 years to life. Dkt. No. 1 at 1. In 20 2016, the state appellate court affirmed the conviction and sentence. Dkt. No. 1 at 3. In 2018, the 21 California Supreme Court denied the petition for review. Dkt. No. 1 at 3. Petitioner reports that 22 he has not previously filed any other petitions with respect to this conviction in any court, state or 23 federal. Dkt. No. 1 at 3. The instant petition was signed by petitioner on March 16, 2020; sent by 24 Prisoner Legal Services to the Court on or about April 24, 2020, and received by this Court on 25 April 27, 2020. Dkt. No. 1-1 and Dkt. No. 1-2. 26 DISCUSSION 27 A. Standard of Review 1 custody pursuant to the judgment of a State court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 3 district court considering an application for a writ of habeas corpus shall “award the writ or issue 4 an order directing the respondent to show cause why the writ should not be granted, unless it 5 appears from the application that the applicant or person detained is not entitled thereto.” 28 6 U.S.C. § 2243. 7 B. Claims 8 Petitioner alleges the following grounds for federal habeas relief: (1) the trial court erred in 9 admitting petitioner’s statements that were obtained in violation of Miranda v. Arizona, 384 U.S. 10 436, 471 (1966),and Edwards v. Arizona, 451 U.S. 477, 481-82 (1981); and (2) the trial court 11 erred in admitting evidence of petitioner’s prior crimes. Liberally construed, the claims appear 12 cognizable under § 2254 and merit an answer from respondent.1 See Zichko v. Idaho, 247 F.3d 13 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas 14 corpus liberally). 15 C. Proper Respondent 16 Petitioner has named both Sheriff Paul Miyamoto and Attorney General Xavier Becerra as 17 respondents. There is generally only one proper respondent to a given petitioner’s habeas petition. 18 Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). When the habeas challenge is to present physical 19 confinement and the petitioner is held within the United States, the default rule is that the proper 20 respondent is the petitioner’s “immediate custodian,” usually the warden of the facility where the 21 petitioner is held. Id. at 433-36; see also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 22 1992) (proper respondent in federal habeas action is petitioner’s immediate custodian, which is 23 defined as person having day-to-day control over petitioner and the only person who can produce 24 “the body” of petitioner). Sheriff Miyamoto is therefore the only proper respondent in this action. 25 The Court DISMISSES Attorney General Xavier Becerra from this action. 26 1 It appears that this petition may be barred by the one-year statute of limitations set forth in the 27 Anti-Terrorism and Death Penalty Act (“AEDPA”). See 28 U.S.C. 2244(d). According to the 1 D. Request for Appointment of Counsel 2 Petitioner has requested appointment of counsel. Dkt. No. 9. The Sixth Amendment’s 3 right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 4 722, 728 (9th Cir. 1986). 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint 5 counsel to represent a habeas petitioner whenever “the court determines that the interests of justice so require” and such person is financially unable to obtain representation. The decision to appoint 6 counsel is within the discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 7 Cir. 1986). The courts have made appointment of counsel the exception rather than the rule by 8 limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or 9 mixed legal and factual questions; (3) cases involving uneducated or mentally or physically 10 impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in 11 trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and 12 (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus 13 Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the 14 circumstances of a particular case indicate that appointed counsel is necessary to prevent due 15 process violations. See Chaney, 801 F.2d at 1196. 16 Petitioner has proffered no reasons why he requires appointment of counsel and the record 17 does not indicate that justice requires the appointment of counsel. The Court exercises its 18 discretion and DENIES petitioner’s request for appointment of counsel without prejudice to sua 19 sponte appointing counsel if circumstances so require. 20 CONCLUSION 21 For the foregoing reasons and for good cause shown, the Court orders as follows. 22 1. The Court DISMISSES Attorney General Xavier Becerra from this action. The 23 Clerk is directed to correct the spelling of respondent’s name in the docket from Myamoto to 24 Miyamoto. 25 2. Petitioner’s request to proceed in forma pauperis is GRANTED. Dkt. No. 2. 26 3. Petitioner’s request for appointment of counsel is DENIED. Dkt. No. 9. 27 4. The Clerk shall serve electronically a copy of this order upon the respondent and 1 the respondent’s attorney, the Attorney General of the State of California, at the following email 2 address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are available via 3 the Electronic Case Filing System for the Northern District of California at Dkt. No. 1. The Clerk 4 shall serve by mail a copy of this order on petitioner. 5 5. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 6 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 7 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 8 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 9 petitioner a copy of all portions of the state trial record that have been transcribed previously and 10 that are relevant to a determination of the issues presented by the petition.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROY D. LACY, Case No. 20-cv-03036-HSG
8 Petitioner, ORDER TO SHOW CAUSE; GRANTING LEAVE TO PROCEED IN 9 v. FORMA PAUPERIS; DENYING REQUEST FOR APPOINTMENT OF 10 PAUL MYAMOTO, COUNSEL 11 Respondent. Re: Dkt. Nos. 2, 9
12 13 Petitioner, a state prisoner incarcerated at San Francisco County Jail, has filed a pro se 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction from 15 Marin County Superior Court. Dkt. No. 1 at 1. His request to proceed in forma pauperis is 16 GRANTED. Dkt. No. 2. 17 BACKGROUND 18 Petitioner was convicted by a Marin County jury of robbery (Cal. Penal Code § 211). Dkt. 19 No. 1 at 2. In February 2016, petitioner was sentenced to 105 years to life. Dkt. No. 1 at 1. In 20 2016, the state appellate court affirmed the conviction and sentence. Dkt. No. 1 at 3. In 2018, the 21 California Supreme Court denied the petition for review. Dkt. No. 1 at 3. Petitioner reports that 22 he has not previously filed any other petitions with respect to this conviction in any court, state or 23 federal. Dkt. No. 1 at 3. The instant petition was signed by petitioner on March 16, 2020; sent by 24 Prisoner Legal Services to the Court on or about April 24, 2020, and received by this Court on 25 April 27, 2020. Dkt. No. 1-1 and Dkt. No. 1-2. 26 DISCUSSION 27 A. Standard of Review 1 custody pursuant to the judgment of a State court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 3 district court considering an application for a writ of habeas corpus shall “award the writ or issue 4 an order directing the respondent to show cause why the writ should not be granted, unless it 5 appears from the application that the applicant or person detained is not entitled thereto.” 28 6 U.S.C. § 2243. 7 B. Claims 8 Petitioner alleges the following grounds for federal habeas relief: (1) the trial court erred in 9 admitting petitioner’s statements that were obtained in violation of Miranda v. Arizona, 384 U.S. 10 436, 471 (1966),and Edwards v. Arizona, 451 U.S. 477, 481-82 (1981); and (2) the trial court 11 erred in admitting evidence of petitioner’s prior crimes. Liberally construed, the claims appear 12 cognizable under § 2254 and merit an answer from respondent.1 See Zichko v. Idaho, 247 F.3d 13 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas 14 corpus liberally). 15 C. Proper Respondent 16 Petitioner has named both Sheriff Paul Miyamoto and Attorney General Xavier Becerra as 17 respondents. There is generally only one proper respondent to a given petitioner’s habeas petition. 18 Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). When the habeas challenge is to present physical 19 confinement and the petitioner is held within the United States, the default rule is that the proper 20 respondent is the petitioner’s “immediate custodian,” usually the warden of the facility where the 21 petitioner is held. Id. at 433-36; see also Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 22 1992) (proper respondent in federal habeas action is petitioner’s immediate custodian, which is 23 defined as person having day-to-day control over petitioner and the only person who can produce 24 “the body” of petitioner). Sheriff Miyamoto is therefore the only proper respondent in this action. 25 The Court DISMISSES Attorney General Xavier Becerra from this action. 26 1 It appears that this petition may be barred by the one-year statute of limitations set forth in the 27 Anti-Terrorism and Death Penalty Act (“AEDPA”). See 28 U.S.C. 2244(d). According to the 1 D. Request for Appointment of Counsel 2 Petitioner has requested appointment of counsel. Dkt. No. 9. The Sixth Amendment’s 3 right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 4 722, 728 (9th Cir. 1986). 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint 5 counsel to represent a habeas petitioner whenever “the court determines that the interests of justice so require” and such person is financially unable to obtain representation. The decision to appoint 6 counsel is within the discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 7 Cir. 1986). The courts have made appointment of counsel the exception rather than the rule by 8 limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or 9 mixed legal and factual questions; (3) cases involving uneducated or mentally or physically 10 impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in 11 trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and 12 (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus 13 Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the 14 circumstances of a particular case indicate that appointed counsel is necessary to prevent due 15 process violations. See Chaney, 801 F.2d at 1196. 16 Petitioner has proffered no reasons why he requires appointment of counsel and the record 17 does not indicate that justice requires the appointment of counsel. The Court exercises its 18 discretion and DENIES petitioner’s request for appointment of counsel without prejudice to sua 19 sponte appointing counsel if circumstances so require. 20 CONCLUSION 21 For the foregoing reasons and for good cause shown, the Court orders as follows. 22 1. The Court DISMISSES Attorney General Xavier Becerra from this action. The 23 Clerk is directed to correct the spelling of respondent’s name in the docket from Myamoto to 24 Miyamoto. 25 2. Petitioner’s request to proceed in forma pauperis is GRANTED. Dkt. No. 2. 26 3. Petitioner’s request for appointment of counsel is DENIED. Dkt. No. 9. 27 4. The Clerk shall serve electronically a copy of this order upon the respondent and 1 the respondent’s attorney, the Attorney General of the State of California, at the following email 2 address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are available via 3 the Electronic Case Filing System for the Northern District of California at Dkt. No. 1. The Clerk 4 shall serve by mail a copy of this order on petitioner. 5 5. Respondent shall file with the Court and serve on petitioner, within sixty (60) days 6 of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 7 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 8 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 9 petitioner a copy of all portions of the state trial record that have been transcribed previously and 10 that are relevant to a determination of the issues presented by the petition. 11 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 12 Court and serving it on respondent within thirty (30) days of the date the answer is filed. 13 6. Respondent may file, within sixty (60) days, a motion to dismiss on procedural 14 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 15 Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the 16 Court and serve on respondent an opposition or statement of non-opposition within twenty-eight 17 (28) days of the date the motion is filed, and respondent shall file with the Court and serve on 18 petitioner a reply within fourteen (14) days of the date any opposition is filed. 19 7. Petitioner is reminded that all communications with the Court must be served on 20 respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must keep 21 the Court informed of any change of address and must comply with the Court’s orders in a timely 22 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant 23 to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 24 1997) (Rule 41(b) applicable in habeas cases). 25 8. Upon a showing of good cause, requests for a reasonable extension of time will be 26 granted provided they are filed on or before the deadline they seek to extend. 27 // 1 This order terminates Dkt. Nos. 2, 9. 2 IT IS SO ORDERED. 3 Dated: 7/2/2020 | / | / ‘ HAYWOOD S. GILLIAM, JR. 5 United States District Judge 6 7 8 9 10 11 a 12
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