Covell v. Ryan et al

Filing 53

ORDER re 52 Petitioner's request for additional time to file an objection is granted. Petitioner shall file his objection on or before January 18, 2013. Petitioner's request for appointment of counsel is denied. Signed by Judge David G Campbell on 12/21/2012. (KMG)

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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Frederick W. Covell, No. CV11-0992 PHX DGC Petitioner, 10 ORDER 11 v. 12 Charles Ryan, et al., Respondents. 13 14 Pending before the Court are the Second Amended Petition for Writ of Habeas 15 Corpus filed by pro se Petitioner Frederick W. Covell (Doc. 36), and United States 16 Magistrate Judge Bridget S. Bade’s Report and Recommendation (“R & R”) (Doc. 51). 17 The R & R recommends that the Court deny the petition. Doc. 51. Petitioner filed a 18 written objection to the R & R on November 1, 2012. Doc. 52. The objection requests 19 additional time to submit a detailed objection and requests the appointment of counsel. 20 Id. at 3. For the reasons set forth below, Petitioner’s request for additional time is 21 granted and his request for the appointment of counsel is denied. 22 I. Request for Additional Time. 23 Petitioner asserts that the R & R did not reach his mailbox until October 26, 2012, 24 11 days after it was filed on October 15, 2012, and that this delivery delay cut into his 14 25 day period to file an objection so that he “did not have time to properly file his 26 objection.” Doc. 52 at 2. The Court agrees that Petitioner did not have sufficient time to 27 28     1 prepare his objection and will grant Petitioner’s request.1 2 objection on or before January 18, 2013. 3 II. Petitioner must file his Request for Appointment of Counsel. 4 The Sixth Amendment right to counsel does not extend to federal habeas corpus 5 actions by state prisoners. McClesky v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 6 801 F.2d 1191, 1192 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 7 1986). 8 28 U.S.C. § 2254 may obtain representation whenever the court “determines that the 9 interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 10 F.2d 1176, 1181 (9th Cir. 1990). The appointment of counsel is discretionary when no 11 evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177 (citation omitted). “In 12 deciding whether to appoint counsel in a habeas proceeding, the district court must 13 evaluate the likelihood of success on the merits as well as the ability of the petitioner to 14 articulate his claims pro se in light of the complexity of the legal issues involved.” 15 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Financially eligible habeas petitioners seeking relief pursuant to 16 Petitioner argues that he is entitled to appointed counsel because he is limited in 17 his abilities and the petition raises “complex issues beyond [his] comprehension, and 18 ability to respond and reply.” Doc. 52 at 3. 19 submitted a letter from a licensed master social worker (“LMSW”) indicating that 20 “[Petitioner’s] current medical conditions would stop any attempts at gainful 21 employment,” and that “[his] physicians cite him as being permanently and totally 22 disabled.” Ex. C, Doc. 52-1 at 11. In support of his request, Petitioner 23 The Court denied Petitioner’s previous motion for appointment of counsel in a 24 June 2, 2011, Order (Doc. 28) and again finds that the interests of justice do not require 25 26 27 28 1 The Court apprises Petitioner of the prisoner “mailbox rule,” which provides that “a legal document is deemed filed on the date a petitioner delivers it to the prison authorities for filing by mail.” Villajin v. Mukasey, No. CV-08-0839-PHX-DGC (ECV), 2009 WL 145921, at *2 (D. Ariz. May 26, 2009) (quoting Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002)). -2-     1 the appointment of counsel. Plaintiff has not demonstrated that he is more likely to 2 succeed on the merits of his claims than any other habeas petitioner before the Court. 3 Additionally, Petitioner’s court filings demonstrate that he has an adequate understanding 4 of the issues and the ability to coherently present his arguments. 5 IT IS ORDERED: 6 1. Petitioner’s request for additional time to file an objection is granted. 7 2. Petitioner shall file his objection on or before January 18, 2013. 8 3. Petitioner’s request for appointment of counsel is denied. 9 Dated this 21st day of December, 2012. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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