Estrada v. Biter

Filing 25

ORDER DENYING 24 Motion to Appoint Counsel, signed by Magistrate Judge Gary S. Austin on 01/13/15. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAIME I. ESTRADA,

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Petitioner,

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Case No. 1:14-cv-00679-AWI-GSA-HC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 24)

v.
MARTIN BITER,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2254. On January 5, 2014, Petitioner filed a motion for appointment of
19 counsel.
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There currently exists no absolute right to appointment of counsel in habeas proceedings.

21 See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d
22 773, 774 (8th Cir. 1984). However, Title 18 U.S.C. 3006A(a)(2)(B) authorizes the appointment
23 of counsel at any stage of the case if “the interests of justice so require.” See Rule 8(c), Rules
24 Governing Section 2254 Cases.
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Petitioner argues that counsel should be appointed now, because he anticipates that the

26 Court will order an evidentiary hearing in this matter and he would like counsel to file a traverse
27 to Respondent’s answer.

The Court has issued a Findings and Recommendation that

28 recommended that Respondent’s motion to dismiss be denied. If the assigned District Judge

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1 adopts the Findings and Recommendation, then the Court will order Respondent to file an
2 answer and Petitioner will have the opportunity to file a traverse. As the Court has not yet
3 ordered Respondent to file an answer and Petitioner to file a traverse, it is premature to appoint
4 counsel to aid Petitioner in filing a traverse. In addition, the Court has not yet ordered an
5 evidentiary hearing or expressed any opinion on whether an evidentiary hearing will be
6 necessary in this case. Furthermore, Petitioner has been able to articulate his points to the Court
7 in his petition, motions, and his opposition to the motion to dismiss. Therefore, the Court does
8 not find that the interests of justice require the appointment of counsel at the present time.
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Accordingly, IT IS HEREBY ORDERED that Petitioner's motion for appointment of

10 counsel is DENIED.
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IT IS SO ORDERED.
Dated:

January 13, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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