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Ramirez v. Fravenhein

United States District Court, N.D. California

September 30, 2014

JOSE RAMIREZ, Petitioner,
v.
S. FRAVENHEIN, Warden, Respondent.

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE; ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL

RONALD M. WHYTE, District Judge.

Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Based on the Certificate of Funds submitted by petitioner, the motion for leave to proceed in forma pauperis is DENIED. Petitioner must pay the $5.00 filing fee within twenty-eight (28) days of the date of this order or face dismissal of this action for failure to pay the filing fee. 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 San Mateo County Superior Court of charges of two counts of simple kidnapping and two counts of rape. Petitioner was sentenced to two consecutive terms of 15 years to life. Petitioner unsuccessfully appealed his convictions to the California Court of Appeal and the California Supreme Court, and filed the underlying petition on July 2, 2014.

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) the trial court violated petitioner's rights by limiting defense counsel's argument to the jury, and (2) there was insufficient evidence to support one of the two convictions of simple kidnapping. Liberally construed, the court orders respondent to show cause why the petition should not be granted.

C. Motion for Appointment of Counsel

Plaintiff's motion for appointment of counsel is DENIED for want of exceptional circumstances. See Rand v. Rowland , 113 F.3d 1520, 1525 (9th Cir. 1997); see also Lassiter v. Dep't of Social Services , 452 U.S. 18, 25 (1981) (there is no constitutional right to counsel in a civil case). This denial is without prejudice to the court's sua sponte appointment of counsel at a future date should the circumstances of this case warrant such appointment.

CONCLUSION

1. Petitioner's motion for leave to proceed in forma pauperis is DENIED. Petitioner shall pay the $5.00 filing fee within twenty-eight days of the filing date of this order. Petitioner is warned that failure to pay the filing fee within the time ...


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