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Asturias v. Bs

United States District Court, N.D. California

August 1, 2016

RICARDO A. ASTURIAS, Petitioner,
v.
DEAN BS, Warden, Respondent.

          ORDER TO SHOW CAUSE; GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; DENYING MOTION TO APPOINT COUNSEL RE: DKT. NOS. 3, 4

          HAYWOOD S. GILLIAM, JR., United States District Judge

         Petitioner, a prisoner currently incarcerated at the California Institution for Men, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction from San Francisco County Superior Court. He also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

         BACKGROUND

         According to the petition, on or about December 14, 2012, petitioner was convicted of continuous sexual abuse of a child and possession of child pornography. He was sentenced to sixteen years and eight months in state prison. In 2015, the California Court of Appeal affirmed his conviction, and the California Supreme Court denied his petition for review. Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which also denied review in 2015. Petitioner reports that he did not file any state habeas petitions before filing this action. The instant action was filed on April 21, 2016.

         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 claims that: (1) the trial court violated his constitutional right to a public trial when it closed the courtroom during the testimony of the minor victim’s parents; and (2) California Penal Code § 859.1, pursuant to which the trial court closed the courtroom, is unconstitutional. 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 corpus liberally).

         C. Motion to Appoint Counsel

         Petitioner has filed a motion to appoint counsel. 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. 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. 1984). An evidentiary hearing does not appear necessary at this time, and there are no exceptional circumstances to warrant appointment of counsel. At this early stage of the proceedings, the Court is unable to determine whether the appointment of counsel is warranted. Accordingly, the interests of justice do not require appointment of counsel at this time, and petitioner’s request is DENIED without prejudice to the Court’s sua sponte reconsideration should the Court later find an evidentiary hearing necessary following consideration of the merits of petitioner’s claims.

         CONCLUSION

         1. In light of petitioner’s lack of funds, his application to proceed in ...


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