Evans v. Soto

Filing 20

ORDER CONSTRUING 19 Motion to be in Part Opposition to Respondent's Motion to Dismiss; ORDER DENYING 19 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 4/29/2013. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

STEFAN E. EVANS,

12

Petitioner,

13
14
15
16

vs.
SOTO,

1:12-cv-01652-LJO-BAM (HC)
ORDER CONSTRUING MOTION TO BE IN
PART OPPOSITION TO RESPONDENT’S
MOTION TO DISMISS (DOC. 19)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Respondent.
____________________________________/

(DOCUMENT #19)

17

On March 28, 2013, Respondent filed a motion to dismiss the petition on the ground

18

that it had been filed outside the one-year statute of limitations. On April 24, 2013, Petitioner

19

filed a paper that he described as a motion to excuse harmless negligence and a motion to

20

appoint counsel. Review of the paper shows that although it is in part a motion for the

21

appointment of counsel, it constitutes opposition to Respondent’s motion to dismiss.

22

Therefore, Petitioner’s motion is CONSTRUED in part as opposition to Respondent’s motion

23

to dismiss the petition.

24

Petitioner has requested the appointment of counsel. There currently exists no

25

absolute right to appointment of counsel in habeas proceedings. See, e.g., Anderson v. Heinze,

26

258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984).

27

However, Title 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage

28

of the case if "the interests of justice so require." See Rule 8(c), Rules Governing Section 2254

1

Cases. In the present case, the Court does not find that the interests of justice require the

2

appointment of counsel at the present time. Accordingly, IT IS HEREBY ORDERED that

3

Petitioner's request for appointment of counsel is denied.

4
5

IT IS SO ORDERED.
Dated:
3em3ec

April 29, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2