Ayon v. Hedgpeth, No. 3:2008cv04180 - Document 9 (N.D. Cal. 2008)

Court Description: ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE; RULINGS by Judge William Alsup denying 2 Motion ; denying 3 Motion ; granting 6 Motion for Extension of Time to File; granting 7 Motion for Leave to Proceed in forma pauperis; denying 2 Motion for Hearing; denying 2 Motion for Discovery; denying 2 Motion to Appoint Counsel.. (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 11/5/2008)
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Ayon v. Hedgpeth Doc. 9 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 JOSE AYON, Petitioner, 11 For the Northern District of California United States District Court 10 12 No. C 08-4180 WHA (PR) ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE; RULINGS v. ANTHONY HEDGPETH, Warden, 13 Respondent. / 14 15 16 Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also requests leave to proceed in forma pauperis. 17 18 Venue is proper because the conviction was obtained in Humboldt County, which is in this district. See 28 U.S.C. § 2241(d). 19 STATEMENT 20 In 1998 a jury convicted petitioner of manufacturing methamphetamine and associated 21 charges. With sentencing enhancements, he was sentenced to prison for seventeen years. His 22 conviction was affirmed on direct appeal by the California Court of Appeal, and the California 23 Supreme Court denied review. Petitioner also filed state habeas petitions, all of which were 24 denied, and two federal petitions, both of which were dismissed without prejudice. DISCUSSION 25 26 A. STANDARD OF REVIEW 27 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 28 custody pursuant to the judgment of a State court only on the ground that he is in custody in Dockets.Justia.com For the Northern District of California United States District Court 1 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose 2 v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 3 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ 4 of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state 5 court must “specify all the grounds for relief which are available to the petitioner ... and shall 6 set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of 7 the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not 8 sufficient, for the petition is expected to state facts that point to a ‘real possibility of 9 constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 10 688, 689 (1st Cir. 1970). “Habeas petitions which appear on their face to be legally insufficient 11 are subject to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 12 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring). 13 B. 14 LEGAL CLAIMS As grounds for federal habeas relief, petitioner asserts that: (1) section 11379.8 of the 15 California Health and Welfare Code, imposing an additional ten-year sentence for 16 manufacturing more than a certain amount of methamphetamine, should not have been applied 17 to petitioner; (2) there was insufficient evidence to support imposition of the section 11379.8 18 enhancement; (3) his rights to due process, an impartial jury, and effective counsel were 19 violated by the use of restraints at trial; (4) his Fourth Amendment rights were violated by the 20 search of a van; (5) his bail of two million dollars was excessive; (6) the “detentions, arrest, 21 warrants, and searches” violated his Fourth Amendment rights, the in camera procedure adopted 22 by the trial judge for determining if sealed information should be revealed to petitioner violated 23 his rights to due process, confrontation and the Fourth Amendment; and his counsel was 24 ineffective in not challenging the confidentiality ruling; and (7) imposition of the ten-year 25 enhancement violated petitioner’s right not to be subjected to cruel and unusual punishment. 26 The first two issues are, at least in federal constitutional terms, the same. That is, his 27 claim in issue one that his due process rights were violated because the enhancement should not 28 have applied to him is based on lack of evidence, which is the same as issue two, the claim that 2 1 his due process rights were violated because there was not sufficient evidence to support the 2 enhancement. Issue one will be dismissed. 3 Issue four is a Fourth Amendment claim; such claims cannot be the basis for federal 4 habeas corpus relief. See Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976) Issue four will be 5 dismissed. The Fourth Amendment claims in issue six also will be dismissed under Stone v. 6 Powell. 7 There is no right to federal habeas relief based on the “excessive bail” clause of the 8 Constitution; it applies only against the federal government. See Galen v. County of Los 9 Angeles, 477 F.3d 652, 659 (9th Cir. 2007). Issue five therefore will be dismissed. 11 For the Northern District of California United States District Court 10 The remainder of the claims are sufficient to require a response. C. 12 MOTIONS Petitioner asks for appointment of counsel. The Sixth Amendment's right to counsel 13 does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), 14 cert. denied, 479 U.S. 867 (1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district 15 court to appoint counsel to represent a habeas petitioner whenever "the court determines that the 16 interests of justice so require and such person is financially unable to obtain representation." 17 Petitioner has presented his claims adequately in the petition, and they are not 18 particularly complex. The Court determines that the interests of justice do not require 19 appointment of counsel. 20 Petitioner also asks for discovery, an evidentiary hearing, and an expansion of the record 21 to allow him to establish a basis for equitable tolling of the one-year statute of limitations for 22 filing his federal petition. Because the timeliness of the petition is not in issue at this stage of 23 the case, the motions will be denied. For the same reason petitioner’s motion for equitable and 24 statutory tolling, filed with his petition, will be denied. Petitioner also asked that a state law question be “certified” to the California Supreme 25 26 Court. Federal district courts cannot certify state-law question to the California Supreme Court, 27 only appellate courts can do that. See Cal. Rules of Court, Rule 8.548. The motion will be 28 denied. 3 1 2 application (document number 6 on the docket) is GRANTED. The application is deemed 4 timely. Leave to proceed in forma pauperis (document number 7) is GRANTED. Petitioner’s 5 motions for an evidentiary hearing, for discovery, for appointment of counsel, and for 6 expansion of the record (document number 2) are DENIED for the reasons set out above, as are 7 his motion for certification to the state supreme court (document number 3) and his motion for 8 tolling included with his petition. 10 11 For the Northern District of California 1. Petitioner’s motion for an extension of time to provide a complete in forma pauperis 3 9 United States District Court CONCLUSION 12 13 2. Issue one, four and five and the Fourth Amendment claim in issue six are DISMISSED. 3. 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. 4. Respondent shall file with the court and serve on petitioner, within sixty days of 14 service of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 15 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 16 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 17 trial record that have been transcribed previously and that are relevant to a determination of the 18 issues presented by the petition. 19 20 21 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the court and serving it on respondent within thirty days of service of the answer. 5. Respondent may file a motion to dismiss on procedural grounds in lieu of an answer, 22 as set forth in Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a 23 motion, petitioner shall file with the court and serve on respondent an opposition or statement of 24 non-opposition within thirty days of receipt of the motion, and respondent shall file with the 25 court and serve on petitioner a reply within 15 days of receipt of any opposition. If a motion is 26 filed it will be ruled upon without oral argument, unless otherwise ordered. 27 28 6. Petitioner is reminded that all communications with the court must be served on respondent by mailing a copy of the document to respondent’s counsel. Papers intended to be 4 1 filed in this case should be addressed to the clerk rather than to the undersigned. Petitioner also 2 must keep the court informed of any change of address by filing a separate paper with the clerk 3 headed “Notice of Change of Address,” and comply with any orders of the court within the time 4 allowed, or ask for an extension of that time. Failure to do so may result in the dismissal of this 5 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez 6 v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 7 8 9 IT IS SO ORDERED. Dated: October 31 , 2008. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 G:\PRO-SE\WHA\HC.08\AYON14180.OSC.wpd 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6