Opinion
Case No. 15-cv-06133-JST
04-25-2016
SHEYNA DOUPREA, Petitioner, v. DEBORAH K. JOHNSON, Respondent.
ORDER TO SHOW CAUSE; DENYING REQUEST FOR APPOINTMENT OF COUNSEL
Re: Dkt. No. 5
Petitioner, a state prisoner incarcerated at Central California Women's Facility and proceeding pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. She has paid the filing fee.
BACKGROUND
In 2010, a Sonoma County jury found petitioner guilty of first degree murder (Cal. Penal Code § 187), and also found true a personal knife use enhancement (Cal. Penal Code § 12022(b)(1)). Docket No. 1 ("Pet.") at 2 and Docket No. 2 at 12. She was sentenced to twenty-six years to life in state prison. Pet. at 1. Her conviction was affirmed by the California Court of Appeal on November 20, 2012, and her petition for review was denied by the California Supreme Court on March 13, 2013. Docket No. 2 at 13. On May 15, 2014, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court, which was denied on December 16, 2015. Id. The instant action was filed on December 28, 2015.
DISCUSSION
A. Standard of Review
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); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court 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.
B. Petitioner's Claims
As grounds for federal habeas relief, petitioner claims that: (1) she was denied effective assistance of counsel when trial counsel failed to investigate and present evidence of her mental condition at the time of the offense; (2) she was denied effective assistance of counsel when trial counsel failed to present blood spatter evidence; (3) she was denied effective assistance of counsel when trial counsel failed to object to prosecutorial misconduct and inadmissible evidence; (4) she was denied effective assistance of counsel when trial counsel failed to request a modification of CALCRIM No. 851; (5) she was denied effective assistance of counsel when trial counsel failed to object to admission of an already excluded stabbing incident; (6) Cal. Evid. Code § 1109 and CALCRIM No. 852 permitted the jury to render a conviction based on proof less than beyond a reasonable doubt, in violation of petitioner's due process rights under the Fifth and Fourteenth Amendments; and (7) cumulative error. Liberally construed, the claims appears cognizable under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus liberally).
C. Motion to Appoint Counsel
Petitioner has filed a motion requesting appointment of counsel because the issues presented are complex and the interests of justice so require. Docket No. 5. Attached to her motion is a declaration from former State Public Defender alleging that the petition for a writ of habeas corpus presents issues of legal, procedural, and factual complexity. Id. at 4.
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. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require" and such person is financially unable to obtain representation. The decision to appoint counsel is within the discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).
At this early stage of the proceedings the Court is unable to determine whether the appointment of counsel is mandated for petitioner. The Court notes that petitioner has presented her claims adequately in the petition, and no evidentiary hearing appears necessary at this time. Accordingly, the interests of justice do not require appointment of counsel at this time, and petitioner's request is DENIED without prejudice.
The instant petition for a writ of habeas corpus was prepared for petitioner by the Office of the State Public Defender, see Docket No. 5 at 4, and is a thorough and detailed presentation of the facts and legal claims, see Docket Nos. 3 and 4. --------
CONCLUSION
For the foregoing reasons and for good cause shown,
1. The Clerk shall mail a copy of this order and the petition with all attachments to the respondent and the respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this order on petitioner.
2. Respondent shall file with the Court and serve on Petitioner, within ninety-one (91) 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 granted based on the claims found cognizable herein. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
If petitioner wishes to respond to the answer, she shall do so by filing a traverse with the Court and serving it on respondent within twenty-eight (28) days of the date the answer is filed.
3. Respondent may file, within ninety-one (91) days, a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the Court and serve on respondent an opposition or statement of non-opposition within twenty-eight (28) days of the date the motion is filed, and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days of the date any opposition is filed.
4. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
5. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED. Dated: April 25, 2016
/s/_________
JON S. TIGAR
United States District Judge