Lino Perez v. Warden

[8] 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA [12] Case No. CV 20-8807 RGK (MRW) 13 In Re LINO PEREZ, ORDER SUMMARILY DISMISSING 14 Petitioner. HABEAS ACTION WITHOUT 15 PREJUDICE [17] The Court dismisses Petitioner’s defective state habeas action without [18] prejudice. [19] * * * [20] Petitioner is an inmate at the state prison in Susanville, California. He [21] filed a motion in this Court requesting the appointment of an attorney to [22] represent him in an as-yet-filed habeas corpus action in this federal court [23] challenging his state court criminal conviction. In support of his request for an [24] attorney, Petitioner asserts (with no supporting declaration or evidence) that he [25] is indigent, illiterate, and “cannot represent myself in appealing the conviction of [26] this case.” (Petition at 1.) [28] 1 Petitioner does not have an active case or habeas petition on file in this 2 district. Petitioner’s submission provides no information regarding his criminal 3 case or the claims of error he wishes to assert on habeas review in federal court. 4 * * * 5 Petitioner’s request must be denied. The U.S. Supreme Court has held 6 that there is no right to appointed counsel in habeas proceedings filed in federal 7 court. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). In order to qualify for 8 a discretionary appointment of an attorney, a prisoner must show that the 9 “circumstances of a particular case indicate that appointed counsel is necessary 10 to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 11 Cir. 1986); Pratt v. Filson, 705 F. App’x 523 (9th Cir. 2017) (same). This 12 requires a “substantial showing” of obstacles beyond those “which are faced by 13 many state habeas petitioners.” Roe v. Cousey, 469 F. App’x 622, 624 (9th Cir. 14 2012). Petitioner’s bare assertions of indigency and illiteracy are insufficient to 15 meet these standards. 16 * * * 17 Further, Petitioner failed to comply with the Rules Governing Section 18 2254 Cases in the United States District Courts. Rule 2(d) expressly requires 19 that a state prisoner commence a habeas action by using a standard form petition 20 prepared by the Court. In our district, prisoners must complete Form CV-69. 21 That form provides the Court with basic information about the petitioner, his 22 conviction, the prior status of his case in state and federal court, and, most 23 importantly, the federal constitutional claims he wishes to pursue here. 24 Under the rule, a state prisoner must begin his case by filing a petition for 25 a writ of habeas corpus. At this stage, the Court cannot allow Petitioner to [28] 1 proceed merely by commencing the action with a request for an appointed 2 lawyer.1 3 * * * 4 If it “appears from the application that the applicant or person detained is 5 not entitled” to habeas relief, a court may dismiss a habeas action without 6 ordering service on the responding party. 28 U.S.C. § 2243 ; see also Rule 4 of 7 Rules Governing Section 2254 Cases in United States District Courts (petition 8 may be summarily dismissed if petitioner plainly not entitled to relief); Local 9 Civil Rule 72-3.2 (magistrate judge may submit proposed order for summary 10 dismissal to district judge “if it plainly appears from the face of the petition [ ] 11 that the petitioner is not entitled to relief.” [22] 23 1 The Court observes that a state prisoner generally has a one-year period after a conviction becomes final (generally, after the conclusion of all 24 appellate proceedings) to commence an action for federal habeas review under AEDPA. 28 U.S.C. § 2244 . In California, when a prisoner does not seek 25 certiorari review of a conviction in the U.S. Supreme Court, a prisoner’s conviction generally becomes final 90 days after the state supreme court denies a 26 petition for review. Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005). The Court presently has insufficient information from which to determine when 27 Petitioner’s federal filing deadline is, but it likely is not until February 2021 (one year plus 90 days from November 2019 state supreme court denial of 28 petition for review). l Therefore, this action is DISMISSED without prejudice. For Petitioner’s 2 | convenience, the Clerk is directed to send him another blank Form CV-69 with a 3 | copy of this Order. IT IS SO ORDERED. [5] Dated: October 2, 2020 ¢*9 Reece a! 7 HON. R@GARY KLAUSNER 8 UNITED STATES DISTRICT JUDGE 9 | Presented by: [10] 1] Lif [ | HON. MICHAELR. WINER 13 | UNITED STATES MAGISTRATE JUDGE [20] a [24] a3