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Owen v. Spearman

United States District Court, N.D. California

February 11, 2014

ALEX T. OWEN, Petitioner,
v.
MARION SPEARMAN, Warden, Respondent.

ORDER TO SHOW CAUSE

EDWARD J. DAVILA, District Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.

BACKGROUND

According to the petition, Petitioner was found guilty by a jury in San Mateo County of two counts of second degree robbery. (Pet. at 2.) Petitioner was sentenced to eleven years in state prison. (Id.) Petitioner appealed the conviction. The state appellate court affirmed the conviction, and the state high court denied review. (Id. at 3.)

Petitioner filed state habeas petitions challenging the conviction, with the California Supreme Court denying review on July 17, 2013. (Pet. at 5.) Petitioner filed the instant federal habeas petition on August 13, 2013.[1]

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. Legal Claims

Petitioner claims that trial counsel rendered ineffective assistance for failing file a motion for new trial based on a witness's "pre-trial encounter" with him, and that appellate counsel provided ineffective assistance for failing to file this viable claim on appeal. (Pet. at 13.) Petitioner also claims ineffective assistance by trial counsel for his failure to conduct a reasonable pre-trial investigation. (Id. at 20.) Liberally construed, these claims are cognizable under § 2254 and merit an answer from Respondent.

C. Petitioner's Motions

On his petition, Petitioner moves for an evidentiary hearing and appointment of counsel. (Pet. at 1.) 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). Unless an evidentiary hearing is required, the decision to appoint counsel is within the discretion of the district court. See Knaubert , 791 F.2d at 728; Bashor v. Risley , 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). An evidentiary hearing does not appear necessary at this time, and there are no exceptional circumstances to warrant appointment of counsel. Accordingly, Petitioner's motions are DENIED ...


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