United States District Court, N.D. California, San Jose Division
ORDER TO SHOW CAUSE; DENYING MOTION FOR APPOINTMENT
OF COUNSEL WITHOUT PREJUDICE RE: DKT. NO. 2
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.
Philip Leo Sands, a California prisoner, filed a pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his state court conviction
out of San Francisco County Superior Court. Mr. Sands has
paid the filing fee. Dkt. No. 11.
STANDARD OF REVIEW
Court may entertain a petition for a 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).
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.” Id.
courts have a duty to construe pro se petitions for writs of
habeas corpus liberally. Zichko v. Idaho, 247 F.3d
1015, 1020 (9th Cir. 2001).
bringing this action, Mr. Sands filed a state habeas petition
raising the sole claim that trial counsel was ineffective in
advising him to reject the prosecution's plea offer and
instead to proceed to trial. Dkt. No. 1 at 16. The state
appellate court found Mr. Sands had articulated a prima facie
case for relief and issued an order to show cause for further
proceedings in San Francisco County Superior Court.
Id. at 16-17. The state superior court ultimately
rejected the claim on the merits and denied Mr. Sands'
request for an evidentiary hearing as unnecessary.
Id. at 70-73. Mr. Sands pursued habeas petitions in
the state appellate and high courts, which both summarily
denied the petition. Id. at 95, 97.
instant federal habeas action, Mr. Sands asserts that his
right to due process was violated by the state court's
failure to hold an evidentiary hearing before rejecting his
claim. Id. at 7. In asserting a due process
violation, Mr. Sands relies on Townsend v. Sain, 372
U.S. 293 (1963), which sets forth the standard for a district
court to review a request for an evidentiary hearing in a
federal habeas action in order to receive evidence that was
not before the state courts. Accordingly, Townsend
only applies to habeas proceedings in federal court, and does
not establish a due process right to an evidentiary hearing
in state court.
a district court may grant a petition challenging a state
conviction or sentence on the basis of a claim that was
“adjudicated on the merits” in state court only
if the state court's adjudication of the claim:
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). Accordingly, any procedural error in
the state court, such as a failure to hold an evidentiary
hearing, is not determinative of Mr. Sands's entitlement
to relief in this case. Rather, the Court's task on
federal habeas review is to review the reasonableness of the
state court's decision in ultimately rejecting the
underlying claim. Id. Liberally construed, the
underlying claim that trial counsel rendered ineffective
assistance with respect to the plea offer is cognizable under
§ 2254 and merits an answer from respondent Ralph Diaz.
Sands filed a motion requesting appointment of counsel based
on his imprisonment, indigency, and being a “layman to
the law.” Dkt. No. 2 at 6. 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.), cert. denied, 479 U.S. 867 (1986). Unless an
evidentiary hearing is required, the decision to appoint
counsel is within the discretion of the district court.
See id. at 728; Bashor v. Risley, 730 F.2d
1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838
(1984). An evidentiary hearing does not appear necessary at
this time, and there are no exceptional circumstances to
warrant appointment of counsel. Accordingly, Mr. Sands's
motion for appointment of counsel, (Docket No. 2), 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
foregoing reasons and for good cause shown, 1. The Clerk of
the Court shall serve by mail a copy of this order and the
petition and all attachments thereto, on Mr. Diaz and his
attorney, the Attorney General of the State of California.
The Clerk also shall serve a copy of this order on Mr. Sands.
Diaz shall file with the court and serve on Mr. Sands, within
60 days of the issuance of this order, an
answer conforming in all respects to Rule 5 of the Rules
Governing Section 2254 Cases, showing cause why a writ of
habeas corpus should not be issued. Mr. Diaz shall file with
the answer and serve on Mr. Sands a copy of all portions of
the state court trial record that have ...