Medina v. Sullivan

Filing 23

ORDER DENYING Petitioner's Motion for Reconsideration of Appointment of Counsel 22 ; ORDER GRANTING Petitioner an Extension of Time to File a Traverse; DUE Date for Traverse: Thirty (30) Days After Service of This Order, signed by Magistrate Judge Sheila K. Oberto on 9/30/10: Traverse ddl EXTENDED to 11/2/2010. (Hellings, J)

(HC) Medina v. Sullivan

Doc. 23

1 2 3 4 5 6 7 8 9 10 RAY MEDINA, 11 Petitioner, 12 13 14 15 16 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 motion requesting reconsideration of appointment of counsel, 24 which was filed on September 17, 2010. 25 I. 26 On April 23, 2010, Petitioner's motion for the appointment 27 of counsel was denied. 28 1
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. W. J. SULLIVAN, Respondent.

) ) ) ) ) ) ) ) ) ) ) )

1:09-cv--00488-OWW-SKO-HC ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION OF APPOINTMENT OF COUNSEL (DOC. 22) ORDER GRANTING TO PETITIONER AN EXTENSION OF TIME TO FILE A TRAVERSE DUE DATE FOR TRAVERSE: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER

The matter has been referred to the

Pending before the Court is Petitioner's

Appointment of Counsel

However, the order of denial was not

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served on Petitioner until September 8, 2010.

In the petition,

Petitioner challenges as untimely a disciplinary finding made in prison that he committed a battery upon a peace officer. Respondent filed an answer to the petition on January 11, 2010. There currently exists no absolute right to appointment of counsel in habeas proceedings. See e.g., Anderson v. Heinze, 258

F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958); Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469 U.S. 823 (1984). A Magistrate Judge may appoint counsel at any stage of a habeas corpus proceeding if the interests of justice require it. 18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254 Cases. A district court evaluates the likelihood of a

petitioner's success on the merits and the ability of a petitioner to articulate his claims pro se in light of the complexity of the of the legal issues involved. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, Petitioner states that he takes medication for mental health and considers himself unable to file his traverse. However, the petition concerns a single issue and involves a straightforward factual situation. In the present case, the Weygandt v.

Court does not find that the interests of justice require the appointment of counsel. II. Extension of Time

Petitioner was granted two extensions of time for filing a traverse; Petitioner has had approximately eight months within which to file a traverse. However, considering the delay in

service of the order denying Petitioner's previous motion for the 2

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appointment of counsel, the Court on its own motion GRANTS Petitioner an additional extension of time to file a traverse until no later than thirty (30) days after the date of service of this order. No further extensions of time will be granted except upon a showing of good cause.

IT IS SO ORDERED. Dated: 3em3ec September 30, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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