United States District Court, N.D. California
ORDER TO SHOW CAUSE; GRANTING APPLICATION TO PROCEED
IN FORMA PAUPERIS; DENYING MOTION TO APPOINT COUNSEL Re: Dkt.
Nos. 2, 4, 6
MARIA-ELENA JAMES UNITED STATES MAGISTRATE JUDGE
a prisoner currently incarcerated at Pleasant 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. He also seeks to
proceed in forma pauperis under 28 U.S.C. § 1915.
to the petition, on or about February 10, 2014, Petitioner
was convicted of several counts of engaging in sexual
intercourse or sodomy with a child 10 years of age or
younger. He was sentenced to 150 years to life in state
prison. In 2015, the California Court of Appeal affirmed his
conviction. In 2016, his petition for review was denied by
the California Supreme Court. Petitioner reports that he did
not file any state habeas petitions before filing this
action. The instant action was filed on April 12, 2016.
Standard of Review
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).
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.
grounds for federal habeas relief, Petitioner claims that:
(1) the trial court erred in admitting his involuntary
confession into evidence; (2) his trial counsel rendered
ineffective assistance by failing to investigate the option
of using a false confession expert and failing to call such
an expert at trial; and (3) the trial court erred by not sua
sponte instructing on attempted sexual intercourse with a
child as a lesser-included offense on one of the charges of
sexual intercourse with a child. Liberally construed,
Petitioner’s 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
Motion to Appoint Counsel
has filed a motion to appoint counsel. 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).
Petitioner urges that he does not speak English and is
illiterate, but he has apparently found an inmate helper to
aid him because his petition is thorough and clear, and he
fully exhausted his state court remedies before filing the
federal action. The likelihood of success on the merits is
extremely low, given the deference this court must afford to
the state court’s decision in which Petitioner’s
claims were rejected on the merits. See People v.
Delossantos, No. H040746, 2015 WL 6865701 (Cal.Ct.App.,
Nov. 9, 2015). Petitioner’s request for appointment of
counsel is DENIED because the interests of justice do not
require that counsel be appointed in this case.
light of Petitioner’s lack of funds, his application to
proceed in forma ...