DEAN W. HALE, Petitioner,
KIM HALLAND, Respondent.
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; FOR RESPONDENT TO SHOW CAUSE; AND DENYING MOTION TO APPOINT COUNSEL
PHYLLIS J. HAMILTON, District Judge.
Petitioner, a California prisoner currently incarcerated at the California Correctional Institute has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Contra Costa County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). He also applied for leave to proceed in forma pauperis.
Petitioner was found guilty after a jury trial of forty counts of a lewd act upon a child under the age of fourteen years. Docket No. 2 at 29. Petitioner was sentenced to 325 years to life on December 7, 2009. Id. Petitioner's petition for review was denied by the California Supreme Court on June 20, 2012. Id. at 91.
A. Standard of Review
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); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief available to the petitioner... [and] state the facts supporting each ground." Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. "[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). "Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal." Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring).
B. Legal Claims
As grounds for federal habeas relief, petitioner asserts: (1) the aggravated sexual assault count should have been subject to the ten year state statute of limitations; (2) the trial court erred by failing to instruct the jury on the statute of limitations and counsel was ineffective for failing to request an instruction; (3) there was insufficient evidence to support sodomy by force; (4) the trial court erred by excluding the victim's theft misconduct which prevented petitioner from presenting a defense; and (5) prosecutorial misconduct.
Count one involves the interpretation of state law regarding the statute of limitations with respect to Cal. Penal § 269, aggravated sexual assault of a child. This claim is dismissed as it solely involves an issue of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas unavailable for violations of state law or for alleged error in the interpretation or application of state law); Loeblein v. Dormire, 229 F.3d 724, 726 (8th Cir. 2000) (rejecting claim that prosecution was time-barred by applicable state statute of limitations because "a state court's failure properly to apply a state statute of limitations does not violate due process or, indeed, any other provision of the Constitution or a federal statute.") Liberally construed, the remaining claims are sufficient to require a response.
Petitioner has also requested the appointment of counsel. The Sixth Amendment's right to counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) provides that in habeas cases, whenever "the court determines that the interests of justice so require", representation may be provided for any financially eligible person. Petitioner has presented his claims adequately, and they are not particularly complex. The interests of justice do not require appointment of counsel
1. Leave to proceed in forma pauperis (Docket ...