IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
July 6, 2005
LARRY JAMES HENSON, PETITIONER,
DERRAL G. ADAMS, WARDEN, RESPONDENT.
ORDER TO SHOW CAUSE AND DENYING MOTION FOR APPOINTMENT OF COUNSEL (Docket no. 9)
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Petitioner Larry James Henson, a State prisoner incarcerated at the California State Prison at Corcoran, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application for in forma pauperis status. Venue is proper because Petitioner was convicted in Monterey County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).
In an Order dated November 9, 2004, the Court granted Petitioner leave to proceed in forma pauperis. However, after conducting a preliminary review of the petition the Court's was not able to discern clearly the nature of Petitioner's claim for relief. Accordingly, the Court dismissed the petition with leave to amend. Thereafter, Petitioner filed an amendment to the petition which clarifies his habeas claim (docket no. 8). The Court now summarizes the background and legal claims based on the information contained in the original petition and the amendment thereto.
On May 20, 2003, Petitioner pled guilty in Monterey County Superior Court to one count of possession of a controlled substance and one count of driving under the influence of alcohol. He received a sixteen month determinate term for possession of a controlled substance. The term was then doubled to thirty-two months under California's Three Strikes Law because Petitioner had suffered a prior second degree robbery conviction in 1970.
Petitioner filed an appeal and a petition for a writ of habeas corpus with the California Court of Appeal claiming that the trial court abused its discretion and denied Petitioner his right to due process when it failed to dismiss his prior felony conviction. The court affirmed the conviction and denied the habeas petition on January 13, 2004.
Petitioner filed a petition for review raising the same claim to the California Supreme Court. The court denied the petition for review on March 24, 2004.
Petitioner filed the present petition on April 21, 2004, in the United States District Court for the Eastern District of California. Because the petition challenges a conviction suffered in Monterey County, the district court transferred the action to this Court, where it was filed on May 10, 2004.
Petitioner alleges that after his guilty plea was taken, and in a subsequent proceeding to dismiss his prior robbery conviction, his federal constitutional rights to equal protection and due process were violated when the trial court abused its discretion under California Penal Code section 1385 by failing to strike the prior conviction. He claims that the trial court considered only his prior criminal history and failed to consider any mitigating factors in Petitioner's favor. Petitioner maintains that section 1385 creates a protected liberty interest in having the court follow certain procedures.
STANDARD OF REVIEW
This Court may entertain a petition for a 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court 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. Federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001).
State sentencing courts must be accorded wide latitude in their decisions as to punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987), cert. denied, 488 U.S. 926, and cert. denied, 488 U.S. 981 (1988). Generally, therefore, a federal court may not review a State sentence that is within statutory limits. See id. However, State law may guarantee a defendant certain procedural rights at sentencing which may not be arbitrarily denied without due process. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (defendant may not be arbitrarily denied State-created liberty interest in sentencing procedure); Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) (when State provides specific method for determining whether certain sentence shall be imposed, "'it is not correct to say that the defendant's interest' in merely having that method adhered to 'is merely a matter of state procedural law'") (citation omitted), cert. denied, 513 U.S. 914 (1994). For example, the Ninth Circuit has determined that Nevada's requirement that a State judge find that it is "just and proper" for a particular defendant to be adjudged a habitual criminal and Washington's requirement that the Washington Supreme Court "review and make particular finding before affirming the death sentence," create such constitutionally protected liberty interests. See Walker v. Deeds, 50 F.3d 670, 672 (9th Cir. 1995) (Nevada); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992) (Washington), cert. denied, 510 U.S. 1215 (1994).
Petitioner alleges that the trial court failed to follow required State procedures when it decided not to strike his prior conviction and adjudged him a habitual offender and sentenced him under the Three Strikes Law. Liberally construed, this presents a cognizable claim for relief, which Respondent will be directed to answer.
REQUEST FOR COUNSEL
Petitioner moves for the appointment of counsel. The Sixth Amendment's right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986). However, a district court is authorized to 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); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations, see Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965), cert. denied, 382 U.S. 996 (1966), and whenever an evidentiary hearing is required, see Rule 8(c) of the Rules Governing Section 2254 Cases; United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); Bashor, 730 F.2d at 1234.
The Court finds that the appointment of counsel is not necessary at this time. The issue raised by Petitioner does not turn on a substantial or complex procedural or legal matter. There also is no indication that an evidentiary hearing is required under 28 U.S.C. § 2254(e). Moreover, Petitioner has informed the Court that he will be released on parole in early July 2005. Accordingly, he will be able to attempt to find counsel on his own. The request for counsel is DENIED.
1. The Clerk of the Court shall serve a copy of this Order, the petition and all attachments thereto (docket no. 1), and the amendment to the petition (docket no. 8), 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 at his most current address and at the address where he can be reached after he is released on parole, which is provided in docket #10.
2. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) days of the issuance of this Order, 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. Respondent shall file with the Answer a copy of all portions of the State trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with the Court and serving it on Respondent within thirty (30) days of his receipt of the Answer. Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision thirty days after the date Petitioner is served with Respondent's Answer.
3. Respondent may file a motion to dismiss on procedural grounds in lieu of an Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or statement of non-opposition to the motion within thirty (30) days of receipt of the motion, and Respondent shall file with the court and serve on Petitioner a reply within fifteen (15) days of receipt of any opposition.
4. It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court and Respondent informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
5. Petitioner is reminded that all communications with the Court must be served on Respondent by mailing a true copy of the document to Respondent's counsel.
6. Extensions of time are not favored, though reasonable extensions will be granted. Any motion for an extension of time must be filed no later than seven days prior to the deadline sought to be extended.
IT IS SO ORDERED.
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