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Douglas v. Grounds

United States District Court, Ninth Circuit

December 12, 2013

LARRY DOUGLAS, AE2986, Petitioner,
v.
R. T. C. GROUNDS, Warden, Respondent.

ORDER TO SHOW CAUSE (Docket #2 & 3)

CHARLES R. BREYER, District Judge.

Petitioner, a state prisoner incarcerated at Salinas Valley State Prison, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from Santa Clara County Superior Court. Petitioner also seeks appointment of counsel and leave to proceed in forma pauperis under 28 U.S.C. § 1915.

BACKGROUND

Petitioner was convicted by a jury of two counts of attempted murder, two counts of assault with a firearm, one count of pimping and one count of pandering. The jury also found true allegations that petitioner acted willfully, deliberately and with premeditation in the commission of the attempted murders, personally used a firearm in the commission of the assaults and the attempted murders, and personally and intentionally discharged a firearm in the commission of the attempted murders. The court found true allegations that petitioner had suffered a prior serious felony strike conviction and a prison prior, and, on July 14, 2010, sentenced him to state prison for a life term consecutive to a determinate term of 58 years.

Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California, which on October 10, 2012 denied review of a petition allegedly raising the same claims raised here.

DISCUSSION

A. 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).

It 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." Id. § 2243.

B. Claims

Petitioner seeks federal habeas corpus relief by raising the following claims: (1) the trial court prejudicially erred in responding to a question from the jury regarding the intent element of attempted murder, (2) the trial court prejudicially erred in failing to instruct the jury that a prosecution witness was an accomplice, (3) the prosecutor engaged in prosecutorial misconduct, (4) there was insufficient evidence to support the pimping and pandering convictions, and (5) cumulative prejudice. Liberally construed, the claims appear cognizable under § 2254 and merit an answer from respondent. See Zichko v. Idaho , 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus liberally).

C. Motion for Appointment of Counsel

Petitioner's motion for appointment of counsel (docket #3) is DENIED without prejudice. See Knaubert v. Goldsmith , 791 F.2d 722, 728 (9th Cir. 1986) (unless an evidentiary hearing is required, the decision to appoint counsel in habeas corpus proceedings is within the discretion of the district court). Petitioner adequately presented his claims for relief in the petition. Accord Bashor v. Risley , 730 F.2d 1228, 1234 (9th Cir. 1984) (although petitioner had no background in law, denial of appointment of counsel within discretion of district court where petitioner clearly presented issues in petition and accompanying memorandum). The court will appoint ...


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