Fairbanks v. Covello ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 BYRON MCCORD FAIRBANKS, 11 Case No. 19-05471 EJD (PR) Petitioner, 12 ORDER TO SHOW CAUSE; v. GRANTING MOTION FOR LEAVE 13 TO PROCEED IN FORMA 14 COVELLO, P FA OU RP AE PR PI OS; I ND TE MNY EI NN TG O M FO TION COUNSEL 15 Respondent. 16 (Docket Nos. 3, 5) 17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction.1 Petitioner has filed 20 a motion for appointment of counsel, (Docket No. 3), and a motion for leave to proceed in 21 forma pauperis, (Docket No. 5). 22 23 BACKGROUND 24 Petitioner was convicted by a jury in Contra Costa County Superior Court of 25 voluntary manslaughter. (Pet. at 1-2.) Petitioner was sentenced to 25 years to life on 26 August 25, 2017. (Id. at 1.) 27 1 Petitioner appealed the matter to the state appellate and state high court, but without 2 success. (Id. at 3.) 3 Petitioner filed this federal habeas action on August 30, 2019. 4 5 DISCUSSION 6 A. Standard of Review 7 This court may entertain a petition for a writ of habeas corpus “in behalf of a person 8 in custody pursuant to the judgment of a State court only on the ground that he is in 9 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 10 § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause 11 why the writ should not be granted, unless it appears from the application that the applicant 12 or person detained is not entitled thereto.” Id. § 2243. 13 B. Legal Claims 14 Petitioner claims the following as grounds for federal habeas relief: (1) violation of 15 due process and right to present a defense by the trial court’s refusal to allow a defense 16 witness to testify; (2) jury instructional error; and (3) ineffective assistance of counsel. 17 (Pet. at 5.) Liberally construed, these claims are cognizable under § 2254 and merit an 18 answer from Respondent. 19 C. Motion for Appointment of Counsel 20 Petitioner has filed a motion for appointment of counsel. (Docket No. 3.) The 21 Sixth Amendment’s right to counsel does not apply in habeas corpus actions. See 22 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986). 23 Unless an evidentiary hearing is required, the decision to appoint counsel is within the 24 discretion of the district court. Id.; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. 25 denied, 469 U.S. 838 (1984). The petition filed in pro se is well-presented and clearly 26 states his claims. (See Docket No. 1.) Furthermore, it does not appear that an evidentiary 27 1 circumstances to warrant appointment of counsel at this time. Accordingly, Petitioner’s 2 motion for appointment of counsel is DENIED without prejudice to the Court’s sua sponte 3 reconsideration should the Court later find an evidentiary hearing necessary following 4 consideration of the merits of Petitioner’s claims. 5 6 CONCLUSION 7 For the foregoing reasons and for good cause shown, 8 1. The Clerk shall serve by mail a copy of this order and the petition and all 9 attachments thereto on Respondent and Respondent’s attorney, the Attorney General of the 10 State of California. The Clerk also shall serve a copy of this order on Petitioner. 11 2. Respondent shall file with the court and serve on Petitioner, within sixty (60) 12 days of the issuance of this order, an answer conforming in all respects to Rule 5 of the 13 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 14 not be issued. Respondent shall file with the answer and serve on Petitioner a copy of all 15 portions of the state trial record that have been transcribed previously and that are relevant 16 to a determination of the issues presented by the petition. 17 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with 18 the Court and serving it on Respondent within thirty (30) days of his receipt of the 19 answer. 20 3. Respondent may file a motion to dismiss on procedural grounds in lieu of an 21 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing 22 Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court 23 and serve on Respondent an opposition or statement of non-opposition within twenty- 24 eight (28) days of receipt of the motion, and Respondent shall file with the court and serve 25 on Petitioner a reply within fourteen (14) days of receipt of any opposition. 26 4. It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded 27 that all communications with the Court must be served on Respondent by mailing a true 1 || parties informed of any change of address by filing a separate paper captioned “Notice of 2 || Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure 3 || to do so may result in the dismissal of this action for failure to prosecute pursuant to 4 || Federal Rule of Civil Procedure 41(b). 5 5. Upon a showing of good cause, requests for a reasonable extension of time 6 || will be granted provided they are filed on or before the deadline they seek to extend. 7 6. Petitioner’s motion for appointment of counsel is DENIED for lack of 8 || exceptional circumstances. (Docket No. 3.) 9 7. Petitioner’s motion for leave to proceed in forma pauperis is GRANTED. 10 || (Docket No. 5.) 11 This order terminates Docket Nos. 3 and 5. 2 IT IS SO ORDERED. aD. 13 || Dated: 12/5/2019 EDWARD J. DAVILA 14 United States District Judge 17 Z 18 19 20 21 22 23 24 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 26 27 28