Mackey v. Soto

Northern District of California, cand-4:2015-cv-03165

ORDER TO SHOW CAUSE; DENYING ({{2}}, {{5}})MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; AND DENYING {{4}} MOTION TO APPOINT COUNSEL. Signed by Judge Haywood S. Gilliam, Jr. on 10/30/2015. Modified on 10/30/2015 to delete a unnecessary character from the docket

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANTOINE A. MACKEY, 7 Case No. 15-cv-03165-HSG (PR) Petitioner, 8 ORDER TO SHOW CAUSE; DENYING v. MOTION FOR LEAVE TO PROCEED 9 IN FORMA PAUPERIS; AND DENYING JOHN SOTO, Warden MOTION TO APPOINT COUNSEL 10 Respondent. Re: Dkt. Nos. 2, 4, 5 11 12 Northern District of California United States District Court 13 INTRODUCTION 14 Petitioner, an inmate at California State Prison – Los Angeles County in Lancaster ("CSP- 15 Lancaster"), filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 16 His petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the 17 Rules Governing Section 2254 Cases in the United States District Courts. Also before the Court 18 are Petitioner's motions for leave to proceed in forma pauperis (Docket Nos. 2 and 5), and his 19 motion for appointment of counsel (Docket No. 4). For the reasons stated below, Respondent is 20 ordered to show cause why the petition should not be granted; and Petitioner's motions for leave 21 to proceed in forma pauperis, and for appointment of counsel are DENIED. 22 BACKGROUND 23 The petition and attachments thereto provide the following information: In 2011, in a joint 24 trial with his co-defendant in Alameda County Superior Court, Petitioner was convicted by a jury 25 of two counts of first degree murder, with special circumstance findings of multiple murders on 26 each of the murder convictions. Petitioner was also convicted of illegal possession of a firearm by 27 a felon. The trial court sentenced Petitioner to two consecutive terms of life without the 28 possibility of parole, consecutive to a determinate term of one year. Petitioner filed a direct appeal 1 in the California Court of Appeal. In 2015, the California Court of Appeal affirmed the judgment. 2 Petitioner subsequently filed a petition for review in the California Supreme Court, which was 3 denied on April 15, 2015. The instant action was filed on July 8, 2015. 4 DISCUSSION 5 A. Standard of Review 6 This Court may entertain a petition for writ of habeas corpus "in behalf of a person in 7 custody pursuant to the judgment of a State court only on the ground that he is in custody in 8 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A 9 district court considering an application for a writ of habeas corpus shall "award the writ or issue 10 an order directing the respondent to show cause why the writ should not be granted, unless it 11 appears from the application that the applicant or person detained is not entitled thereto." 28 12 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are Northern District of California United States District Court 13 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 14 908 F.2d 490, 491 (9th Cir. 1990). 15 B. Claims 16 As grounds for federal habeas relief, Petitioner claims: (1) the trial court erred in denying 17 his motion to change venue; (2) the trial court erred in denying his motion to suppress the GPS 18 tracking evidence; (3) the trial court erred in denying his motion for severance; (4) the trial court 19 erred in instructing that Petitioner's testimony could be used against both defendants without 20 giving a corollary instruction that it could be used in their favor; (5) the trial court erred when it 21 refused to give Petitioner's requested instruction on third party culpability evidence with respect to 22 Lewis's testimony; (6) the instruction regarding Broussard's shackling and custody status was 23 prejudicial error; (7) defense counsel rendered ineffective assistance by failing to request a 24 limiting instruction with respect to Broussard's guilty plea; (8) the trial court's instructions 25 allowed the jury to erroneously consider Broussard's testimony without corroboration to convict 26 Petitioner for the murder of Willis; and (9) cumulative error. Liberally construed, the claims 27 appear arguably cognizable under § 2254 and merit an answer from Respondent. See Zichko v. 28 Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs 2 1 of habeas corpus liberally). 2 C. Pending Motions 3 1. Motion for Leave to Proceed In Forma Pauperis 4 Petitioner seeks to proceed in forma pauperis under 28 U.S.C. § 1915. See Docket Nos. 2 5 and 5. Petitioner has submitted a Certificate of Funds, signed by an authorized officer that 6 indicates that Petitioner had an average monthly balance of $26.73 for the past six months and an 7 average monthly deposit of $26.66 in his inmate trust account. See Docket No. 5 at 5 and 7. 8 Thus, Petitioner's motion for leave to proceed in forma pauperis is DENIED. 9 2. Motion to Appoint Counsel 10 Petitioner has filed a motion to appoint counsel. See Docket No. 4. He argues that 11 appointment of counsel is warranted because of the complexity of the issues, the law library 12 policies at CSP-Lancaster, "present pressing matters," and his lack of knowledge about the law. Northern District of California United States District Court 13 See id. at 1-3. The Sixth Amendment's right to counsel does not apply in habeas corpus actions. 14 See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Unless an evidentiary hearing is 15 required, the decision to appoint counsel is within the discretion of the district court. See 16 Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). An evidentiary 17 hearing does not appear necessary at this time, and there are no exceptional circumstances to 18 warrant appointment of counsel. At this early stage of the proceedings, the Court is unable to 19 determine whether the appointment of counsel is warranted. Accordingly, the interests of justice 20 do not require appointment of counsel at this time, and Petitioner's request is DENIED without 21 prejudice to the Court's sua sponte reconsideration should the Court later find an evidentiary 22 hearing necessary following consideration of the merits of Petitioner's claims. 23 CONCLUSION 24 For the foregoing reasons, 25 1. Petitioner's motions to proceed in forma pauperis are DENIED. See Docket Nos. 2 and 26 5. Petitioner must pay the $5 filing fee within thirty (30) days of the date of this order or face 27 dismissal of this action for failure to pay the filing fee. 28 2. Petitioner's motion for appointment of counsel is DENIED. See Docket No. 4. 3 1 3. The Clerk shall mail a copy of this order and the petition with all attachments to the 2 Respondent and the Respondent's attorney, the Attorney General of the State of California. The 3 Clerk shall also serve a copy of this order on Petitioner. 4 4. Respondent shall file with the Court and serve on Petitioner, within ninety-one (91) 5 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules 6 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 7 based on the claims found cognizable herein. Respondent shall file with the answer and serve on 8 Petitioner a copy of all portions of the state trial record that have been transcribed previously and 9 that are relevant to a determination of the issues presented by the petition. 10 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 11 Court and serving it on Respondent within thirty-five (35) days of the date the answer is filed. 12 5. Respondent may file, within ninety-one (91) days, a motion to dismiss on procedural Northern District of California United States District Court 13 grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules 14 Governing Section 2254 Cases. If Respondent files such a motion, petitioner shall file with the 15 Court and serve on Respondent an opposition or statement of non-opposition within twenty-eight 16 (28) days of the date the motion is filed, and Respondent shall file with the Court and serve on 17 Petitioner a reply within fourteen (14) days of the date any opposition is filed. 18 6. Petitioner is reminded that all communications with the Court must be served on 19 Respondent by mailing a true copy of the document to Respondent's counsel. Petitioner must 20 keep the Court informed of any change of address and must comply with the Court's orders in a 21 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 22 pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 23 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 24 7. Upon a showing of good cause, requests for a reasonable extension of time will be 25 granted provided they are filed on or before the deadline they seek to extend. 26 // 27 // 28 // 4 1 This order terminates Docket Nos. 2, 4 and 5. 2 IT IS SO ORDERED. 3 Dated: 10/30/2015 4 ______________________________________ HAYWOOD S. GILLIAM, JR. 5 United States District Judge 6 7 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5