DeShaw v. Ryan et al

Filing 17

ORDER that the motion for appointment of counsel (Doc. 14 ) is denied in full. The motion for status conference (Doc. 16 ) is denied. The motion for extension of time (Doc. 15 ) is granted such that Petitioner has until January 6, 2017, to file his objections to the R&R (Doc. 13 ). Signed by Senior Judge James A Teilborg on 12/21/16.(KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Scott Lee DeShaw,
Petitioner,

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ORDER

v.

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No. CV-15-00892-PHX-JAT

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is the Report and Recommendation (“R&R”) from the

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Magistrate Judge recommending that this case be dismissed for lack of jurisdiction.

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(Doc. 13). The R&R makes this recommendation because the Petition in this case is a

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second or successive petition filed without permission from the Court of Appeals to file

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another case. (Doc. 13 at 3).

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Prior to filing the Petition in this case, Petitioner filed a request for leave to file a

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second or successive petition with the Ninth Circuit Court of Appeals. (Doc. 13 at 3).

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The Ninth Circuit Court of Appeals appointed Petitioner counsel for that case. His

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counsel in that case has now filed a motion to be appointed as his counsel in this case and

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in any ancillary state court proceedings. (Doc. 14).

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In the motion for appointment, counsel correctly recounts that one factor the court

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should consider in deciding whether to appoint counsel is Petitioner’s likelihood of

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success on the merits. (Doc. 14 at 2). Counsel then argues that Petitioner’s Miller claim

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is likely to succeed on the merits. (Doc. 14 at 2-3). However, counsel makes no

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argument that this Court will ever reach the Miller claim in this case. In other words,

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counsel makes no argument that would overcome the R&R’s conclusion that this Court is

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without jurisdiction to hear this case. Therefore, without expressing any opinion on the

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substance of Petitioner’s Miller claim; the Court sees no likelihood of success in this

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case.

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Based on the foregoing,

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IT IS ORDERED that the motion for appointment of counsel (Doc. 14) is denied

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in full.
IT IS FURTHER ORDERED that the motion for status conference (Doc. 16) is
denied.

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IT IS FINALY ORDERED that the motion for extension of time (Doc. 15) is

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granted such that Petitioner has until January 6, 2017, to file his objections to the R&R

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(Doc. 13).

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Dated this 21st day of December, 2016.

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