United States District Court, C.D. California, Western Division
ANTHONY L. DEPINA, Petitioner,
v.
WARDEN MUNIZ, Respondent.
ORDER TO SHOW CAUSE RE: DISMISSAL OF PETITION FOR
FAILURE TO STATE A CLAIM
PAUL
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
Anthony
L. Depina (“petitioner”) initiated this action on
August 3, 2016, by filing a Petition for Writ of Habeas
Corpus by a Person in State Custody pursuant to 28 U.S.C.
§ 2254 (“Petition” or “Pet.”),
accompanied by a Memorandum of Points and Authorities
(“Memorandum” or “Mem.”), and
exhibits. The Petition challenges his April 7, 1995,
conviction in the Los Angeles County Superior Court, case
number LA019499, for first degree robbery (Cal. Penal Code
§ 211), with sentence enhancements based on his
admission to prior strike convictions. (Mem. at 2-3).
A.
THE PETITION FAILS TO STATE A CLAIM
Petitioner
purports to be bringing two grounds for relief. (See
Pet. at 5 ¶ 8(a), (b) (“due to a lack of writing
space, ” referring the Court to the Memorandum, as well
as to an attached exhibit for Grounds One and Two)).
Petitioner indicates that he raised his two claims in a
habeas petition to the California Supreme Court.
(Id.). In the referenced Memorandum, petitioner
states that he filed habeas petitions in the state courts,
“[p]ursuant to People v. Vargas, ” 59
Cal.4th 635 (2014).[1](Mem. at 1, Apps. 1-3). The superior court
denied his petition for failure to establish a prima facie
case for relief (Mem. App. 1); and the court of appeal and
California Supreme Court both summarily denied his petitions.
(Mem. Apps. 2, 3). He also generally states that relief is
warranted pursuant to Descamps v. United States, 133
S.Ct. 2276, 186 L.Ed.2d 438 (2013).[2](Mem. at 2). Petitioner
argues that between 2001 and 2008, a “complicated
procedural history in regards to this case, ”
“hindered [him] in filing a viable Petition for Writ of
Habeas Corpus until now.” (Mem. at 2 (citing Exs.
A-F)). In his Statement of Pertinent Facts, petitioner cites
to various cases in support of his general contention that
“The Trial Court Could Not Have Found The Offense To Be
A Strike Without Resolving Factual Dispute In Regards To
People v. Superior Court (Romero) and The
Court’s Authority Under § 1385.” (Mem. at 3
(citing Descamps, 133 S.Ct. at 2287, Apprendi v.
New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), People v. Vargas, 59 Cal.4th 635
(2014), and other California cases)).
Under
28 U.S.C. § 2254(a), petitioner may only seek habeas
relief if he is contending that he is in custody in violation
of the Constitution or laws or treaties of the United States.
See Estelle v. McGuire, 502 U.S. 62, 67-68, 112
S.Ct. 475, 116 L.Ed.2d 385 (1991) (“In conducting
habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of
the United States.”); Smith v. Phillips, 455
U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“A
federally issued writ of habeas corpus, of course, reaches
only convictions obtained in violation of some provision of
the United States Constitution.”). Rule 2 of the Rules
Governing Section 2254 Cases in the United States District
Courts (“Habeas Rule 2”) requires that a
petitioner specify all the grounds for habeas relief as well
as the facts supporting each ground. Habeas Rule 2(c). A
petitioner is required to set forth a “detailed
statement” explaining his habeas claims. See Mayle
v. Felix, 545 U.S. 644, 649, 125 S.Ct. 2562, 162 L.Ed.2d
582 (2005) (“[Habeas] Rule 2(c) . . . requires a . . .
detailed statement. The habeas rule instructs the petitioner
to ‘specify all the grounds for relief available to
[him]’ and to ‘state the facts supporting each
ground.’”).
Here,
neither petitioner’s Petition, nor his Memorandum,
clearly sets forth the two grounds for relief he purports to
be bringing, and the Court is unable to discern from the way
petitioner presented his grounds for relief what federal
constitutional claim(s) (if any) petitioner is alleging.
(Compare Pet. at 5 with Mem. at 2-7). In
paragraph 8(a) (Ground One of the Petition), instead of even
briefly stating the ground on which he claims he is being
held in violation of his federal constitutional rights,
petitioner merely states “See attached handwritten
[Memorandum] at pp. 1-2, due to a lack of writing space,
” and for supporting facts he directs the Court to
“Exhibit __ of attached [Memorandum] at pp. 1-5
(response to the court of appeals order . . .).” (Pet.
at 5). Similarly, in paragraph 8(b), Ground Two, he also
directs the Court to the handwritten Memorandum at pages 3-7,
with the supporting facts purportedly found in the same
exhibit referred to in Ground One. (Id.). Assuming
Exhibit G to the Petition -- which petitioner labels
“Petitioner’s Response to the Court of
Appeal’s Order and Habeas Petition for Review in the
California Supreme Court” -- contains the supporting
facts, in that document petitioner states that he “now
contends the trial court[] abused [its] discretion when it
refused to strike prior serious felony convictions, pursuant
to section 1385, because [petitioner’s] two prior
serious felony convictions arose out of a single act . . .
[PLEASE SEE - Exhibit A at pp 10-12; the[] attached habeas
petition.].”[3] (Pet. Ex. G (capitalization omitted)
(final brackets in original)). Exhibit G itself has numerous
exhibits attached. Thus, the Court is left to speculate as to
the two grounds for relief that petitioner is
seeking to raise herein, and to hunt for the facts and
arguments supporting those two grounds for relief in
petitioner’s nested exhibits. In short, in its present
format, the Petition does not provide either a clear legal
basis for habeas relief or specific supporting facts for any
alleged claim. For these reasons, the Court concludes that
the Petition does not clearly state a claim pursuant to 28
U.S.C. § 2254(a), and does not contain any claim that
meets the standard set forth in Habeas Rule 2(c) requiring a
statement of specific grounds and facts.
B.
REQUEST FOR APPOINTMENT OF COUNSEL
In his
prayer for relief, petitioner asks the Court to
“appoint counsel and grant[] reasonable ancillary funds
for an investigator and attorney fees.” (Mem. at 8). In
order to be entitled to appointed counsel, a petitioner must
show that the “circumstances of a particular case
indicate that appointed counsel is necessary to prevent due
process violations.” Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir. 1986); see 18 U.S.C. §
3006A(a)(2) (providing that a district court has discretion
to appoint counsel for state habeas corpus petitioners when
it determines “that the interests of justice so
require”); see Anderson v. Heinze, 258 F.2d
479, 484 (9th Cir. 1958) (“Except under most unusual
circumstances, an attorney ought not to be appointed by a
federal court for the purpose of trying to find something
wrong with a state judgment of conviction.”). At this
time, the Court has not determined that appointment of
counsel is necessary to prevent a due process violation.
Additionally, in the event the Court later determines that an
evidentiary hearing will be held, the Court will appoint
counsel to represent petitioner at that time. See
Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.
1986).
C.
ORDER
Based
on the foregoing, on or before September 6, 2016, petitioner
is ordered to show cause why this action should not be
dismissed for failure to to state a claim. To avoid
dismissal, on or before September 6, 2016, petitioner must
file a response to this Order detailing why he believes the
action should go forward under § 2254, and must also
demonstrate that he has a claim (or claims) upon which habeas
relief may be granted by indicating (1) the specific
ground(s) for relief and supporting facts on which he seeks
habeas relief; and (2) clearly indicating whether he has
exhausted his claim(s) in the state courts, as well as any
reason for delay in bringing his claim(s).
The
filing by petitioner of a First Amended Petition -- on the
Central District of California’s form Petition for Writ
of Habeas Corpus -- on or before September 6, 2016, shall be
deemed compliance with this Order. An amended petition should
reflect the same case number (CV 16-5784-CAS (PLA)), be
clearly labeled “First Amended Petition, ” and be
filled out completely. In ¶ 8 of the First Amended
Petition, petitioner should specify separately and concisely
each federal constitutional claim that he seeks to raise
herein and answer all of the questions pertaining to each
claim. If petitioner attaches a supporting Memorandum of
points and authorities, the arguments therein should clearly
correspond to the grounds for relief listed in ¶ 8(a)
and/or (b) of the habeas petition form and not include any
additional claims. The Court Clerk is directed to send
petitioner a blank copy the Central District’s form
Petition for Writ of Habeas Corpus by a Person in State
Custody.
Finally,
petitioner is cautioned that his failure to timely respond to
this Order will result in a recommendation that the action be
dismissed without prejudice for failure to state a claim,
failure to prosecute, and/or failure to follow court orders.
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