Mau v. Bond

Full title: MICHAEL DWAYNE MAU, JR., Petitioner, v. BOND, Warden, Respondent.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Oct 15, 2014

2:14-cv-1021 KJN P (E.D. Cal. Oct. 15, 2014)

Opinion

MICHAEL DWAYNE MAU, JR., Petitioner, v. BOND, Warden, Respondent. No. 2:14-cv-1021 KJN P. United States District Court, E.D. California. October 15, 2014.

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 22, 2010, petitioner was convicted of

second degree murder, six counts of attempted murder, and shooting into an occupied building, all with enhancements for benefitting a gang and personal use of a firearm causing death or great bodily injury. [Petitioner] was also convicted of various firearm offenses and being an active gang participant.

         People v. Mau, 2012 WL 6101904 (Cal.App. 3 Dist. Dec. 10, 2012). Petitioner was sentenced to 254 years and eighth months to life in state prison. (ECF No. 10.) On June 17, 2014, petitioner's mixed petition was stayed to allow petitioner to exhaust claims three and four in the California Supreme Court. (ECF No. 7 at 5.)

         On September 25, 2014, petitioner, through the help of another inmate, filed a motion to lift the stay of this action, and a motion to amend, accompanied by a proposed first amended petition. (ECF Nos. 8-10.) On September 26, 2014, petitioner filed a motion for appointment of counsel. Petitioner claims he is severely developmentally challenged, and submitted his July 9, 2013 "TABE" (Tests of Adult Basic Education) total battery score of 2.2, which included a reading score of 2.5 and language score of 0.6. (ECF No. 11 at 9.) Petitioner alleges that he cannot read or write. (ECF No. 11 at 1.)

         Good cause appearing, petitioner's motion to lift the stay is granted. The Clerk of the Court is directed to re-open this action.

         In light of the complexity of the legal issues involved, as well as petitioner's disability, the court has determined that the interests of justice require appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B); see also Weygandt v. Look , 718 F.2d 952, 954 (9th Cir. 1983).

         With regard to petitioner's motion to amend, it appears that the proposed amended petition sets forth the same claims as those contained in the original petition. Because counsel is appointed to represent petitioner, the undersigned denies the motion to amend without prejudice to its renewal should counsel choose to amend. Petitioner is granted sixty days in which to file a motion to amend. If petitioner does not so move, the court will order briefing on the original petition.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Petitioner's motion to lift the stay (ECF No. 9) is granted;

         2. Petitioner's motion for appointment of counsel (ECF No. 11) is granted;

         3. The Federal Defender is appointed to represent petitioner;

         4. The Clerk of the Court is directed to re-open this action, and serve a copy of the petition (ECF No. 1), the proposed first amended petition (ECF No. 10), and this order on David Porter, Assistant Federal Defender;

         5. Petitioner's pro se motion to amend (ECF No. 8) is denied without prejudice; and

         6. Petitioner is granted sixty days in which to renew his motion to amend. If petitioner does not so move, the court will order briefing on the original petition.