Harrison v. Smith

— 1 — — 2 — — 3 — — 4 — 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA — 7 — 8 DAVID SCOTT HARRISON, Case No. 23-cv-01450-AMO (PR) 9 Petitioner, ORDER TO SHOW CAUSE; DENYING PETITIONER’S REQUESTS FOR 10 v. STAY OF PROCEEDINGS AND FOR APPOINTMENT OF COUNSEL; AND 11 RON BROOMFIELD, Warden,1 SETTING BRIEFING SCHEDULE Respondent. — 12 — 13 Petitioner David Scott Harrison, an inmate currently incarcerated at San Quentin State 14 Prison (SQSP), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 15 challenging a September 30, 2021 disciplinary hearing at SQSP. He has paid the full filing fee. 16 Petitioner also filed requests for a stay, discovery, an evidentiary hearing, and appointment 17 of counsel. Dkt. 6 at 3. Petitioner has also asked for a copy of all orders issued in this action. See — 18 — id. However, to date, no written orders have been issued. Thus, the Court DENIES such a request 19 and instead directs the Clerk of the Court to send Petitioner a copy of the docket sheet. The Court 20 shall address all other pending requests below. 21 I. PETITIONER’S PENDING REQUESTS 22 A. Request for Stay 23 Petitioner has filed a request for a stay in the proceedings until Respondent “lifts the mass 24 searching lockdown or, in the alternative, provide[s] Petitioner an additional 45 days to file his 25 Case Management Statement, plus ample time to satisfy any other deadlines of which Petitioner is — 26 — — 27 — 1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil 1 yet to be informed of . . . .” Dkt. 6 at 3. The request for a stay of proceedings is DENIED 2 because Petitioner has not shown a sufficient reason for this Court to interfere in the day-to-day 3 operations of the prison. See Turner v. Safley, 482 U.S. 78, 84-86 (1987); Wright v. Rushen, 642 4 F.2d 1129 , 1132 (9th Cir. 1981) (courts should avoid enmeshing themselves in minutiae of prison 5 operations in name of constitution). Also, Petitioner need not file a Case Management Statement 6 as this is a new case and no such statement is necessary at this time. Thus, the Court DENIES as 7 unnecessary Petitioner’s motion for an extension of time to file a Case Management Statement. 8 Dkt. 6. And finally, as for Petitioner’s request for future extensions of time, such a request is 9 DENIED as premature. Dkt. 6. 10 B. Request for Appointment of Counsel 11 The Sixth Amendment right to counsel does not apply in habeas corpus actions. See 12 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), 13 however, authorizes a district court to appoint counsel to represent a habeas petitioner whenever 14 “the court determines that the interests of justice so require” and such person is financially unable 15 to obtain representation. The decision to appoint counsel is within the discretion of the district 16 court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728 ; 17 Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). 18 Courts have made appointment of counsel the exception rather than the rule by limiting it 19 to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal 20 and factual questions; (3) cases involving uneducated or mentally or physically impaired 21 petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the 22 claims; (5) cases in which petitioner is in no position to investigate crucial facts; and (6) factually 23 complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and 24 Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the 25 circumstances of a particular case indicate that appointed counsel is necessary to prevent due 26 process violations. See Chaney, 801 F.2d at 1196 ; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 27 1965). Under the foregoing standard, the Court finds that appointment of counsel is not C. Requests for Discovery and for an Evidentiary Hearing — 1 — As for Petitioner’s requests for discovery and for an evidentiary hearing “as requested in — 2 — the habeas petition,” Respondent shall file a response to these requests no later than twenty-eight — 3 — (28) days after the issuance of this Order. See Dkt. 6 at 3; see also Dkt. 1 at 14. Petitioner shall — 4 — file his reply no later than fourteen (14) days after Respondent’s response is filed. — 5 — II. ORDER TO SHOW CAUSE — 6 — It does not appear from the face of the petition that it is without merit. Good cause — 7 — appearing, the Court hereby issues the following orders: — 8 — 1. The Clerk of the Court shall serve a copy of this order upon Respondent and — 9 — Respondent’s attorney, the Attorney General of the State of California, at the following email — 10 — addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The petition and — 11 — the exhibits thereto are available via the Electronic Case Filing System for the Northern District of — 12 — California. The Clerk shall serve by mail a copy of this order on Petitioner. — 13 — 2. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) — 14 — days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules — 15 — Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. — 16 — Respondent shall file with the Answer a copy of all portions of the relevant state records that have — 17 — been transcribed previously and that are relevant to a determination of the issues presented by the — 18 — petition. — 19 — 3. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse — 20 — with the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. — 21 — Should Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty — 22 — (60) days after the date Petitioner is served with Respondent’s Answer. — 23 — 4. Respondent may file with this Court and serve upon Petitioner, within sixty (60) — 24 — days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an — 25 — Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section — 26 — 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on — 27 — Respondent an opposition or statement of non-opposition to the motion within sixty (60) days of 1 receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply 2 || within fourteen (14) days of receipt of any opposition. 3 5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the 4 || Court and Respondent informed of any change of address and must comply with the Court’s 5 orders in a timely fashion. Pursuant to Northern District Local Rule 3-11, a party proceeding pro 6 || se whose address changes while an action is pending must promptly file a notice of change of 7 address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action 8 without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the 9 || Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written 10 || communication from the pro se party indicating a current address. See L.R. 3-11(b); see also ll Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 12 Petitioner must also serve on Respondent’s counsel all communications with the Court by 5 13 || mailing a true copy of the document to Respondent’s counsel. 14 6. As directed above, Respondent shall file a response to Petitioner’s requests for 3 15 discovery and for an evidentiary hearing no later than twenty-eight (28) days after the issuance of a 16 || this Order. Petitioner shall file his reply no later than fourteen (14) days after Respondent’s 3 17 response is filed. 18 7. Upon a showing of good cause, requests for a reasonable extension of time will be 19 granted provided they are filed on or before the deadline they seek to extend. 20 8. Ron Broomfield, the current warden of the prison where Petitioner is incarcerated, 21 has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil 22 || Procedure. 23 9. The Clerk is directed to send Petitioner a copy of the docket sheet. 24 IT IS SO ORDERED. 25 Dated: June 6, 2023 . 26 racel. ARACELI MARTINEZ-OLGUIN 27 United States District Judge — 28 —