United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
FAILURE TO STATE A CLAIM [TWENTY-ONE DAY OBJECTION
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
has filed the instant federal habeas petition challenging his
state conviction. A preliminary screening of the petition
reveals that the petition fails to present any cognizable
grounds for relief. Therefore, the Court will recommend that
the petition be SUMMARILY DISMISSED.
February 20, 2013, Petitioner was convicted in the Madera
County Superior Court of attempted murder, assault with a
firearm, possession of a firearm by a felon, and vehicle
theft, with true findings that he personally used a firearm.
(Doc. No. 1.) He was sentenced to an indeterminate term of
143 years and 8 months to life. (Doc. No. 1.) Petitioner
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). On September 25, 2015,
the Fifth DCA affirmed the judgment in a reasoned opinion.
(Doc. No. 1.) He then filed a petition for review in the
California Supreme Court, and the California Supreme Court
denied review on December 9, 2015. Id.
then sought habeas relief in the state courts. He first filed
a habeas petition in the Madera County Superior Court, but
the petition was denied on August 31, 2016, as untimely. He
then filed a habeas petition on October 6, 2016, in the Fifth
DCA. The petition was denied on October 14, 2016, for failure
to first present the claims to the lower court. He again
filed a habeas petition in the Madera County Superior Court.
On November 16, 2016, the superior court denied the petition
for failure to state a prima facie claim for relief,
untimeliness, raising claims that were previously raised and
rejected, and raising issues that could have been raised on
direct appeal. He next filed a habeas petition in the Fifth
DCA on December 23, 2016. That petition was denied with
citation to People v. Hines, 15 Cal.4th 997, 1024
(1997) and People v. Memro, 11 Cal.4th 786, 859
(1997). Finally, he filed a petition in the California
Supreme Court which was summarily denied on June 21, 2017.
filed his federal petition in this Court on July 10, 2017.
(Doc. No. 1). He presents two grounds for relief: 1) The
trial court failed to appoint counsel to represent Petitioner
in a Marsdenhearing; and 2) The District Attorney's
Office wrongly denied his citizen complaint for false
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases requires the Court
to make a preliminary review of each petition for writ of
habeas corpus. The Court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court . . . .” Rule 4;
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990). The Advisory Committee Notes to Rule 8 indicate that
the Court may dismiss a petition for writ of habeas corpus,
either on its own motion under Rule 4, pursuant to the
respondent's motion to dismiss, or after an answer to the
petition has been filed.
Failure to State a Cognizable Federal Claim
alleges the trial court erred by failing to appoint counsel
to assist him during a Marsden hearing. As the Fifth
DCA indicated in its citations, there is no authority
requiring the appointment of counsel to assist during a
Marsden hearing. Although Petitioner has a
constitutional right to the assistance of counsel during
trial, he has no constitutional right to the assistance of
multiple attorneys. Petitioner does not claim a violation of
the Constitution or Federal law. He does not cite to any
Supreme Court authority which would require the appointment
of counsel to assist a defendant in a Marsden
hearing against defense counsel, nor is the Court aware of
any such authority. Thus, Petitioner cannot establish that
the adjudication of his claim in state court “resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
. . . or resulted in a decision that was based on an
unreasonable determination of the facts . . . .” 28
U.S.C. § 2254. The claim should be summarily dismissed.
states he filed a citizen's complaint with the District
Attorney against the prosecutor who prosecuted the case
against him. He claims his citizen's complaint was
wrongly denied. This allegation also fails to present a
cognizable claim. Title 28 U.S.C. § 2254(a) states that
a district court shall entertain a habeas petition
“only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” (emphasis added). Petitioner's
request to review the decision of the ...