Scott v. Swarthout

Filing 10

ORDER Denying Petitioner's 2 Motion to Appoint Counsel and an Investigator signed by Magistrate Judge Sandra M. Snyder on 12/11/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELMAR K. SCOTT,
Petitioner,

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Case No. 1:13-CV-01804-LJO-SMS HC
ORDER DENYING PETITIONER'S
MOTION FOR APPOINTMENT OF
COUNSEL AND AN INVESTIGATOR

v.
GARY SWARTHOUT, WARDEN,
Respondent.

(Doc. 2)

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On November 1, 2013, Petitioner, a state prisoner proceeding pro se and in forma pauperis,

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filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the same time, Petitioner
moved for appointment of counsel and an investigator.
No absolute right to appointment of counsel exists in habeas corpus proceedings. See, e.g.,

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Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958). This is because

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the Sixth Amendment does not apply in habeas corpus actions, which are civil in nature. Chaney v.

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Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson, 258 F.2d at 481. The Court need only appoint

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counsel "if the interests of justice so require." 18 U.S.C. § 3006A.
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Even though no constitutional right to counsel applies in habeas actions, habeas petitioners

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retain a right to due process. Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). A district court

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only abuses its discretion by denying appointment of counsel if the case is so complex that due
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process violations will occur without counsel. See Bonin, 999 F.2d at 429; Chaney, 801 F.2d at
1196.
That Petitioner has capably prepared a detailed position setting forth his six claims is

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abundant evidence that the case is not so complex as to require counsel. Petitioner does not

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disagree, contending only that if an evidentiary hearing were to be ordered, appointment of counsel

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and an investigator could expedite the matter. Since the Court denies Petitioner's motion without

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prejudice to his renewing it if future developments, such as the need for an evidentiary hearing,
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occur, no due process violation arises from denying Petitioner's motion now
Accordingly, the Court hereby DENIES without prejudice Petitioner's motion for

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appointment of counsel and an investigator.

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IT IS SO ORDERED.
Dated:

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December 11, 2013

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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