1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 JERMAINE JONES, 4 Case No. 21-cv-07157-RS (PR) Petitioner, 5 v. ORDER TO SHOW CAUSE 6 JEFF LYNCH, 7 Respondent. 8

9 10 INTRODUCTION 11 Petitioner seeks federal habeas relief under

. The petition for such 12 relief is now before the Court for review pursuant to

and Rule 4 of the 13 Rules Governing Section 2254 Cases. The petition states cognizable claims. Respondent 14 shall file a response to the petition on or before August 21, 2023. 15 The petition may be untimely. Petitioner was convicted in 2018, but he did not file 16 his federal habeas petition until 2021. (Dkt. No. 9.) The petition was dismissed in 17 December 2021 and petitioner did not file a motion to reopen until November 2022. (Dkt. 18 Nos. 7 and 10.) On these facts, it appears the petition was not filed within AEDPA’s one- 19 year limitations filing period. If respondent concludes the petition is untimely, he may 20 wish to file a motion to dismiss on grounds of untimeliness, but he is not required to file 21 one. 22 The Clerk shall enter Jeff Lynch, the warden of the prison in which petitioner is 23 housed, as the respondent in this action, and terminate the Secretary of the CDCR and the 24 San Mateo Superior Court. Lynch is the sole proper respondent, as he is the custodian 25 having day-to-day control over petitioner, the only person who can produce “the body” of 26 the petitioner. Brittingham v. United States,

(9th Cir. 1992) (quoting 27 Guerra v. Meese,

(D.C. Cir. 1986)). 1 BACKGROUND 2 According to the state appellate opinion, in 2018 a San Mateo County Superior 3 Court jury convicted petitioner of murder, shooting at an occupied vehicle, and possessing 4 a firearm as a felon. People v. Jones, No. A155649,

, at *2 (Cal. Ct. 5 App. Dec. 2, 2022). Various sentencing enhancement allegations were found true.

A 6 sentence of life without possibility of parole plus 34 years to life was imposed.

7 Petitioner’s attempts to overturn his convictions in state court were unsuccessful. This 8 federal habeas petition followed. 9 DISCUSSION 10 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 11 in custody pursuant to the judgment of a State court only on the ground that he is in 12 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 13 § 2254(a). A district court considering an application for a writ of habeas corpus shall 14 “award the writ or issue an order directing the respondent to show cause why the writ 15 should not be granted, unless it appears from the application that the applicant or person 16 detained is not entitled thereto.”

. Summary dismissal is appropriate 17 only where the allegations in the petition are vague or conclusory, palpably incredible, or 18 patently frivolous or false. See Hendricks v. Vasquez,

(9th Cir. 1990). 19 As grounds for federal habeas relief, petitioner contends (1) a special circumstance 20 enhancement is invalid because the enhancement fails to comply with the narrowing 21 requirements of the Eighth Amendment; (2) the trial court violated petitioner’s 22 constitutional rights in the ways stated in the petition; (3) trial counsel rendered ineffective 23 assistance in the ways stated in the petition; (4) there was cumulative error; and (5) the 24 prosecutor committed misconduct in the ways stated in the petition. When liberally 25 construed, these claims are cognizable on federal habeas review and shall proceed. 26 27 1 MOTION FOR COUNSEL 2 The Court construes petitioner’s “Notice of Statement of Parolee or Mandatory 3 Releasee Concerning Appointment of Counsel Under the Criminal Justice Act” as a 4 motion for the appointment of counsel. (Dkt. No. 13.) There is no right to counsel in 5 habeas corpus actions. See Knaubert v. Goldsmith,

(9th Cir. 1986). A 6 district court is authorized under 18 U.S.C. § 3006A(a)(2)(B) to appoint counsel to 7 represent a habeas petitioner whenever “the court determines that the interests of justice so 8 require” and such person is financially unable to obtain representation. The decision to 9 appoint counsel is within the discretion of the district court, see Chaney v. Lewis,

(9th Cir. 1986), and should be granted only when exceptional circumstances 11 are present. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and 12 Procedure § 12.3b at 383-86 (2d ed. 1994). 13 Petitioner has not shown that there are exceptional circumstances warranting the 14 appointment of counsel. The Clerk shall terminate Dkt. No. 13. 15 CONCLUSION 16 1. The Clerk shall serve electronically a copy of this order upon the respondent and 17 the respondent’s attorney, the Attorney General of the State of California, at the following 18 email addresses: [email protected] and [email protected]. The 19 petition and the exhibits thereto are available via the Electronic Case Filing System for the 20 Northern District of California. The Clerk shall serve by mail a copy of this order on 21 petitioner. 22 2. On or before August 21, 2023, respondent shall file with the Court and serve on 23 petitioner, an answer conforming in all respects to Rule 5 of the Rules Governing Section 24 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on 25 petitioner’s cognizable claims. Respondent shall file with the answer and serve on 26 petitioner a copy of all portions of the state trial record that previously have been 27 transcribed and that are relevant to a determination of the issues presented by the petition. 1 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 2 || with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 3 || answer is filed. 4 4. In lieu of an answer, respondent may file, on or before August 21, 2023, a 5 || motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 6 || Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 7 || petitioner shall file with the Court and serve on respondent an opposition or statement of 8 || non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 9 || file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 10 || opposition is filed. 11 5. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent’s counsel. E 13 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the S 14 || Court and respondent informed of any change of address and must comply with the 3 15 || Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 16 || action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 17 7. Upon a showing of good cause, requests for a reasonable extension of time will 18 || be granted provided they are filed on or before the deadline they seek to extend. 19 8. The filing fee has been paid. (Dkt. No. 12.) 20 9. The Clerk shall terminate the Secretary of the CDCR and the San Mateo 21 || Superior Court as a respondent. Jeff Lynch is the sole proper respondent in this action. 22 10. Petitioner’s motion for the appointment of counsel is DENIED. (Dkt. No. 13.) 23 || The Clerk shall terminate Dkt. No. 13. 24 IT IS SO ORDERED. 25 || Dated: April 10 , 2023 Me ( ( £ f, a 26 RICHARD SEEBOR: 27 Chief United States District Judge 28 ORDER TO SHOW CAUSE CASE No. 21-cv-07157-RS