Housh v. Rackley

Background

Carlos C. Housh, a self-represented prisoner, brought this action under 28 U.S.C. § 2254, the federal law allowing a state prisoner to seek federal review of allegedly unlawful custody. His petition challenged several aspects of his trial and sentencing, including jury selection, the exclusion and admission of evidence, references to his custody and prior imprisonment, the use of a prior conviction as a sentencing strike, consecutive sentences, the denial of a new trial, cumulative error, and sentencing based on an allegedly false conviction.

The pending matters were Housh’s “Motion to Object re: Dkt. 48” and his request that the court consider a claim alleging that the California Department of Corrections and Rehabilitation incorrectly calculated his sentence by failing to account for Propositions 36 and 47.

Request for Transcripts and Reconsideration

Housh said he had not received certain transcripts, particularly the sealed transcript of a January 5, 2012, Marsden hearing. A Marsden hearing concerns a criminal defendant’s request to have appointed counsel replaced. Housh argued that the hearing would show that the trial judge acted unreasonably in denying a request for a change of venue based on racial discrimination.

The court explained that its earlier June 28, 2019 order had denied a request for additional transcriptions because the record did not support Housh’s claim that portions of the proceedings had not been transcribed. The court also noted that transcription would not be possible if the court reporter had not recorded the exchanges.

To the extent Housh sought permission to file a motion asking the court to reconsider that earlier order, the court denied leave. Housh had not addressed any of the factors required for reconsideration under the Northern District of California’s local rule, and his repeated general accusations that the respondent was withholding the transcription were insufficient.

The court separately denied Housh’s request for the January 5, 2012, Marsden-hearing transcript. The petition did not rely on that hearing, challenge the denial of a change of venue, or allege judicial bias. The court therefore found the transcript unrelated to the claims in the action.

Request to Amend

The court treated Housh’s request to add the sentence-calculation claim as a request for leave to amend his petition. Although it stated that adding claims through separate, piecemeal filings was not appropriate, the court granted Housh leave to amend.

The court directed Housh to file a single amended petition containing both the new sentence-calculation claim and the claims already raised. It warned that filing an amended petition would waive any arguments or claims omitted from it. If Housh filed an amended petition, the respondent’s existing answer and Housh’s existing reply would become moot. The court gave him 28 days from the date of the order to file the amended petition. If he did not do so, the action would proceed on the original petition.

Disposition

The court denied Housh’s request for reconsideration of the June 28, 2019 order, denied his request for the January 5, 2012, Marsden-hearing transcript, and granted his request for leave to amend the petition. The order terminated Docket Nos. 52 and 55. The court did not decide the merits of Housh’s habeas claims in this order.