Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gomez v. Lewis

United States District Court, Ninth Circuit

August 8, 2013

GERARDO PINEDA GOMEZ, Petitioner,
v.
WARDEN GREG LEWIS, Respondent.

ORDER DENYING MOTIONS TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE

LUCY H. KOH, District Judge.

Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has submitted a Certificate of Funds, signed by an authorized officer, that indicates that Petitioner had an average monthly balance of $91.27 for the past six months, and an average monthly deposit of $105.00 in his inmate trust account. Thus, Petitioner's motions for leave to proceed in forma pauperis are DENIED. The Court orders Respondent to show cause why a writ of habeas corpus should not be granted.

BACKGROUND

According to the petition, Petitioner was convicted in Monterey County Superior Court of two counts of attempted murder and related crimes, and sentenced to a term of ninety-two years to life. Petitioner filed the underlying petition on April 19, 2013.

DISCUSSION

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).

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.

B. Petitioner's Claims

As grounds for federal habeas relief, Petitioner alleges that: (1) counsel rendered ineffective assistance because (a) counsel failed to move to suppress the victim, Raul's, identification testimony, (b) counsel failed to impeach Raul with available evidence, and (c) counsel failed to consult an expert witness on the issue of eyewitness testimony and failed to present expert testimony regarding factors that might lead to an erroneous identification; (2) Petitioner was denied a fair trial because of the cumulative prejudice of counsel's errors; (3) Petitioner did not receive fair notice that he would be sentenced pursuant to Penal Code section 1866.22(b)(4) because that section was not charged in the information; and (4) the imposition of punishments pursuant to Penal Code section 1866.22(a), (b), and (d) were improper because they were not supported by substantial evidence. Liberally construed, the Court orders Respondent to show cause why the petition should not be granted.

C. Appointment of Counsel

Petitioner moves for appointment of counsel. However, 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). While 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel to represent a habeas petitioner if "the court determines that the interests of justice so require, " the courts have made appointment of counsel the exception rather than the rule. Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is Order Denying Motions to Proceed In Forma Pauperis; Order to Show Cause necessary to prevent due process violations. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Petitioner has thus far been able to adequately present his claims for relief. No evidentiary hearing appears necessary in this case, nor are any other extraordinary circumstances apparent. Accordingly, the Court concludes that appointment of counsel is not necessary at this time. Petitioner's motion for appointment of counsel is DENIED without prejudice.

CONCLUSION

1. Petitioner's motion for appointment of counsel is DENIED ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.