United States District Court, N.D. California
ORDER TO SHOW CAUSE; GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; DENYING MOTION FOR APPOINTMENT OF COUNSEL Dkt. Nos. 2, 3
MARIA-ELENA JAMES, Magistrate Judge.
Petitioner, a state prisoner incarcerated at California City Correctional Facility, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from Lake County Superior Court. He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915. For the reasons that follow, the court orders respondent to show cause why the petition should not be granted.
According to the petition, petitioner was convicted by a jury of robbery in 2013. He was sentenced to six years in state prison. Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and the Supreme Court of California, which denied review in 2014. Petitioner did not seek habeas relief in the state courts. The instant action was filed on February 17, 2015.
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 claims that: (1) he received ineffective assistance of counsel in that his attorney failed to move to suppress his statement to the police obtained after a warrantless search; and (2) the trial court erred in refusing to allow him to introduce evidence of the complaining witness's prior accusations of being victimized. Liberally construed, these claims are cognizable for federal habeas review. The court orders respondent to show cause why the petition should not be granted as to the above issues.
C. Motion for Appointment of Counsel
Petitioner has requested that counsel be appointed to represent him in this action. A district court may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require" and such person is financially unable to obtain representation. 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See id. The interests of justice do not require appointment of counsel at this time. The motion for appointment of counsel is DENIED. This denial is without prejudice to the court's sua sponte reconsideration should the developments of this case dictate otherwise.
1. The Clerk shall serve by mail a copy of this order and the petition and all attachments thereto (docket no. 1), as well as a magistrate judge jurisdiction consent form upon the respondent and the respondent's attorney, the Attorney General of the State of ...