United States District Court, N.D. California
ORDER TO SHOW CAUSE ORDER DENYING WITHOUT PREJUDICE
MOTION TO APPOINT COUNSEL
C. SPERO, CHIEF MAGISTRATE JUDGE.
Orlando Lopez seeks federal habeas relief under 28 U.S.C.
§ 2254 from his state convictions. See Pet.
(dkt. 1). The petition for such relief is here for review
under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing
Section 2254 Cases. Because Lopez's claims are cognizable
when liberally construed, the Court allows the matter to
proceed. Respondent William Muniz shall file a response to
the petition within 90 days. In conjunction with his petition,
Lopez moves for appointment of counsel pursuant to 18 U.S.C.
§ 3006A(a)(2). See Mot. (dkt. 2). Because Lopez
has not established that the interests of justice warrant
appointment of counsel, the Court denies Lopez's motion
without prejudice, as detailed below.
states in his petition that he was convicted of murder, among
other charges, following a jury trial, and sentenced to 311
years to life in state prison in August of 2012. See
Pet. ¶¶ 17, 19. On direct appeal, a California
appellate court reduced Lopez's first-degree murder
conviction to second-degree murder, and ordered the trial
court to stay Lopez's sentence on certain counts for
mayhem, but otherwise substantially affirmed Lopez's
conviction and sentence. See People v.
Lopez, No. A136253, 2016 WL 634651 (Cal.App. Feb. 17,
2016). Lopez then filed a Petition for Review to Exhaust
State Remedies with the California Supreme Court pursuant to
Rule 8.508 of the California Rules of Court, which the
California Supreme Court summarily denied. Lopez also filed a
petition for habeas corpus in the California First District
Court of Appeal, raising Sixth Amendment claims, but that
court, over the dissent of one justice, declined to issue an
order to show cause, instead denying the petition for failure
to present a prima facie case of ineffective assistance of
counsel. The California Supreme Court summarily denied
Lopez's petition for review of that decision. On June 12,
2017, Lopez filed a petition for habeas corpus in this Court
on the grounds that there was insufficient evidence to
support Lopez's convictions and that he received
ineffective assistance of counsel. See Pet.
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). A
district court considering a petition for a writ of habeas
corpus 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. Summary dismissal is
appropriate only where the allegations in the petition are
vague or conclusory, palpably incredible, or patently
frivolous or false. See Hendricks v. Vasquez, 908
F.2d 490, 491 (9th Cir. 1990).
grounds for federal habeas relief, Lopez asserts that there
was insufficient evidence to convict him and that he received
ineffective assistance of counsel in violation of the Sixth
Amendment. See generally Pet. When liberally
construed, these claims are cognizable in a federal habeas
corpus action. See Coleman v. Johnson, 566 U.S. 650,
651 (2012) (per curiam) (discussing the availability of
federal habeas relief for insufficient evidence under
Jackson v. Virginia, 443 U.S. 307 (1979));
Strickland v. Washington, 466 U.S. 668, 687-99
(1984) (discussing the standard for federal habeas relief for
ineffective assistance of counsel).
MOTION TO APPOINT COUNSEL
16, 2017, Lopez also submitted an ex parte motion for
appointment of counsel pursuant to 18 U.S.C. §
3006A(a)(2). See Mot. In his motion, Lopez
“requests that the Court appoint Dylan Schaffer and
Matthew Dirkes as counsel to represent him” in
connection with this matter. Mot. at 2. Lopez explains that
Schaffer and Dirkes are currently representing him pro bono
and have already represented him on his direct appeal in
state court as well as state habeas proceedings. Id.
Asserting that “[t]he interests of justice weigh in
favor of the appointment of counsel given that Mr. Lopez is
indigent and his petition raises complex legal issues,
” and noting counsel's prior experience, Lopez
urges this court to appoint Schaffer and Dirkes as his
counsel for the current proceedings. See Id.
Specifically, Lopez contends that the complexity of legal and
factual issues, such as state-law errors regarding accomplice
testimony, “the number of counts charged, the number of
defendants, . . . the legal theories upon which the
prosecution obtained convictions, ” and the
“manifestly unjust” nature of Lopez's life
sentence all weigh in favor of appointment of counsel.
Id. at 4. Lopez contends that should he “be
compelled to proceed on his own, it will be virtually
impossible for him to pursue the claims in the petition given
his lack of understanding of the complex legal issues.”
Id. Additionally, Lopez argues that “[c]ounsel
should be appointed given that Mr. Lopez's federal habeas
claims will rely at least in part on testimony from two
experts” regarding acoustic signatures of firearms and
the cognitive impact of methamphetamine. Id. at 5
(citing Pet. ¶¶ 169-94; David v. Johnson,
No. 15-cv-05760-HSG, 2016 U.S. Dist. LEXIS 57516, at *4 (N.D.
Cal. Apr. 29, 2016)).
support of Lopez's motion for appointment of counsel,
Lopez's attorney, Dylan L. Schaffer submits a declaration
detailing his involvement in Lopez's case and Lopez's
need for financial assistance. See Schaffer Decl.
(dkt. 2). Schaffer explains that he first became
involved in Lopez's legal proceedings when he was
appointed counsel for Lopez's Court of Appeal and
California Supreme Court appeals, where he spent much time
familiarizing himself with Lopez's case. Id.
¶ 2-3. While representing Lopez in those appeals,
Schaffer concluded that Lopez received ineffective assistance
of counsel at the Superior Court level prompting his
initiation of the present federal and previous state habeas
corpus claims. Id. ¶ 4. Schaffer notes that
Lopez is “indigent and lacks the financial ability to
hire counsel to represent him in connection with his federal
habeas proceedings, ” leading Schaffer to file the
petition on his behalf pro bono. Id. ¶¶ 5-
6; see Pet.
18 U.S.C. § 3006A(a)(2), “representation may be
provided for any financially eligible person who . . . (B) is
seeking relief under . . . section 2254, ” where
“a United States magistrate judge or the court
determines that the interest of justice so require.”
Appointment of counsel for indigent individuals is at the
discretion of the district court and flows from the
court's determination of whether “the interests of
justice so require.” Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir. 1986) (citing 18 U.S.C. §
3006A(g)). The Ninth Circuit has held that “[i]ndigent
state prisoners applying for habeas relief are not entitled
to appointed counsel unless the circumstances of a particular
case indicate that appointed counsel is necessary to prevent
due process violations.” Id. (citing,
inter alia, Kreiling v. Field, 431 F.2d
638, 640 (9th Cir. 1970) (per curiam)).
Court is not satisfied that the present record demonstrates
that failure to appoint counsel would violate Lopez's
right to due process, and therefore DENIES the motion at this
time, without prejudice to Lopez renewing his motion after
Respondent Muniz files an answer or motion in response to