United States District Court, N.D. California
RICARDO A. ASTURIAS, Petitioner,
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
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.
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.
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). 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.
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).
Motion to Appoint Counsel
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.
light of petitioner’s lack of funds, his application to
proceed in ...