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Gonzales v. Carey


July 6, 2005



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


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).


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.


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.


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 for an evidentiary hearing require the appointment of counsel, the Court will so order sua sponte.


Petitioner has filed an application to proceed in forma pauperis. Ordinarily, a petitioner is permitted to file a civil action in federal court without prepayment of fees or security if he makes affidavit that he is unable to pay such fees or give security therefor. See 28 U.S.C. § 1915(a). The filing fee for a petition for a writ of habeas corpus is $5.00. See 28 U.S.C. § 1914(a). In support of his application to proceed in forma pauperis, Petitioner has submitted information from his prison trust account which shows that over the preceding six-month period the average deposits each month to his account were $166.66 and the average monthly balance in his account was $274.80. Based on this information, the Court concludes that Petitioner is able to pay the $5.00 filing fee. Accordingly, leave to proceed in forma pauperis is DENIED. Petitioner shall arrange for the prison trust account office or a friend or family member to pay the fee in this matter. The fee shall be paid within two weeks of the date of this Order or the petition will be dismissed.


1. The Clerk of the Court shall serve 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 at his most current address.

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. Petitioner shall pay the $5.00 filing fee within two weeks of the date of this Order or the petition will be dismissed.

5. 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).

6. 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.

7. 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.

This Order terminates docket numbers 5 and 6.



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