UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
July 5, 2005
CHARLES E. PRATT, PETITIONER,
SCOTT KERNAN, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER TO SHOW CAUSE
Charles E. Pratt, an inmate at New Folsom State Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases. His in forma pauperis application, motion for appointment of counsel and request for evidentiary hearing also are before the court for consideration.
Pratt was convicted in the Alameda County Superior Court of two counts of robbery and was sentenced to a term of nineteen years in prison on May 15, 2002. He unsuccessfully appealed the conviction. He also filed petitions for writ of habeas corpus in the state courts, including in the California Supreme Court. Pratt then filed this action.
A. Review Of Petition
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court considering an application for a writ of habeas corpus shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
The petition contains the following claims: First, Pratt claims that he received ineffective assistance of counsel in that counsel failed to have blood evidence tested and failed to investigate witness Catherine Wolf in a reasonable and timely manner. Second, Pratt claims that the prosecutor engaged in misconduct by misstating facts in violation of Pratt's right to a fair trial. Third, Pratt contends his right to due process was violated because there was insufficient evidence to support the verdict. Fourth, Pratt claims his sentence violates due process and exceeds that allowed by state law because the prior conviction was not for a serious or violent felony that could be counted under the Three Strikes Law. Liberally construed, the claims are cognizable in a federal habeas action and warrant a response from respondent.
B. Motion For Appointment Of Counsel
Pratt has moved for appointment of counsel to represent him in this action. A district court may appoint 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." 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See id. Based on the materials in the court file, it does not appear that appointment of counsel is required in this action to prevent a due process violation. The motion is DENIED.
For the foregoing reasons,
1. The petition states cognizable claims for habeas relief and warrants a response.
2. The clerk shall serve by certified mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on petitioner.
3. Respondent must file and serve upon petitioner, on or before September 16, 2005, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondents must file with the answer a copy of all portions of the court proceedings that have been previously transcribed and that are relevant to a determination of the issues presented by the petition.
4. If petitioner wishes to respond to the answer, he must do so by filing a traverse with the Court and serving it on respondent on or before October 14, 2005.
5. Petitioner's motion for appointment of counsel is DENIED. (Docket # 2.)
6. Petitioner's in forma pauperis application is GRANTED. (Docket # 3.)
7. Petitioner's request for an evidentiary hearing is DENIED. (Docket # 4.) This denial is without prejudice to the court reconsidering the need for an evidentiary hearing after the habeas petition is fully briefed.
IT IS SO ORDERED.
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