Belfield v. Spearman

          ORDER TO SHOW CAUSE DKT. NOS. 2, 3, AND 6

          Joseph C. Spero Chief Magistrate Judge.

         INTRODUCTION

         Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state convictions. 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.

         The petition states cognizable claims. On or before February 18, 2020, respondent shall file in response to the petition an answer or a dispositive motion.

         Petitioner has consented to magistrate jurisdiction. (Dkt. No. 4.) Respondent must also consent if the undersigned is to continue as the presiding judge in this action.

         BACKGROUND

         According to the petition in 2016, a Contra Costa Superior Court jury convicted petitioner of second degree murder, shooting at a person from a motor vehicle, and unlawfully possessing a firearm. A sentence of 75 years to life was imposed.

         Petitioner sought but was denied relief on state review. This federal habeas petition followed.

         DISCUSSION

         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). A district court considering an application 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).

         As grounds for federal habeas relief, petitioner claims that (1) there were instructional errors; (2) trial counsel rendered ineffective assistance; (3) the trial court failed to provide the jury with an appropriate response to one of its questions; and (4) there was prosecutorial misconduct (including Griffin error)^[1] and the trial court erred in allowing it. When liberally construed, these claims are cognizable on federal habeas review.

         MOTIONS

         Petitioner's motion to proceed in forma pauperis is GRANTED. (Dkt. Nos. 3 and 6.)

         Petitioner moves for the appointment of counsel because he is a schizophrenic and the issues presented in the petition are complex. This motion is DENIED. (Dkt. No. 2.) The case does not present factually or legally complex issues nor are there other reasons justifying the appointment of counsel. 18 U.S.C. § 3006A. According to papers filed by petitioner, his ...