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Gonzales v. Carey

July 6, 2005

LUIS GONZALES, PETITIONER,
v.
THOMAS L. CAREY, WARDEN, RESPONDENT.



ORDER TO SHOW CAUSE AND DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Docket nos. 5, 6)

The opinion of the court was delivered by: Claudia Wilken United States District Judge

INTRODUCTION

Petitioner Luis Gonzales, a State prisoner incarcerated at the California State Prison-Solano, 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 Alameda County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).

BACKGROUND

On September 24, 2001, an Alameda County jury found Petitioner guilty of manslaughter for killing in imperfect self-defense, that is, under an honest but unreasonable belief that his life was in danger. The jury found that Petitioner personally used a handgun as well. On May 15, 2002, the trial court sentenced Petitioner to the middle term of six years for voluntary manslaughter and four years for use of a handgun, for a total of ten years.

The California Court of Appeal affirmed the judgment in a written opinion on October 9, 2003. On December 17, 2003, the California Supreme Court denied Petitioner's petition for review. Petitioner sought certiorari from the United States Supreme Court, but his petitions were denied as untimely. Petitioner did not seek further State collateral review of his conviction. His federal habeas corpus petition was filed on December 28, 2004.

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 a writ of habeas corpus liberally. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001).

Petitioner raises the following claims for relief, all of which were presented to the State courts for review: (1) the prosecutor used peremptory challenges to remove two Hispanic prospective jurors in violation of Petitioner's rights under the Sixth and Fourteenth Amendments, (2) the trial court erroneously, in violation of due process, instructed the jury under CALJIC No. 2.04 that it could consider whether Petitioner attempted to fabricate evidence, and (3) the trial court violated the Sixth and Fourteenth Amendments when it denied Petitioner's motion for a new trial based on allegations of juror misconduct.

Because it does not appear from the face of the petition that Petitioner is not entitled to relief, Respondent will be ordered to answer the petition.

REQUEST FOR COUNSEL

Petitioner has requested 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.

At this stage of the proceedings the Court is unable to assess whether the appointment of counsel is required. Once an answer has been filed the Court will be in a better position to determine whether counsel must be appointed. Accordingly, the request for the appointment of counsel is DENIED without prejudice. Should the Court find that the interests of justice or the need ...


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