Estrada v. Biter

Filing 36

ORDER APPOINTING Counsel, signed by Magistrate Judge Gary S. Austin on 6/18/15. (cc: Federal Defender's Office) (Marrujo, C)

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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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Case No. 1:14-cv-00679-AWI-GSA (HC)

Petitioner,

ORDER APPOINTING COUNSEL

v.

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MARTIN BITER, Warden,

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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.
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On January 13, 2015, the Court denied Petitioner’s motion to appoint counsel because it

20 did not find that the interests of justice required the appointment of counsel at that time. (ECF
21 No. 25). In that order, the Court noted that a findings and recommendation had been issued, but
22 had not yet been adopted by the District Judge. (ECF No. 25). Subsequently, the District Judge
23 adopted the findings and recommendation, denied Respondent’s motion to dismiss, and referred
24 the matter back to the undersigned for further proceedings. (ECF No. 29). The Court then
25 ordered Respondent to file an answer to the petition and allowed Petitioner to file a traverse.
26 (ECF No. 30). On May 19, 2015, Respondent filed an answer to the petition. (ECF No. 33). On
27 June 8, 2015, Petitioner filed a traverse. (ECF No. 34). The Court now reviews whether to
28 appoint counsel to Petitioner at this time.

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There currently exists no absolute right to appointment of counsel in habeas proceedings.

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2 See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d
3 773, 774 (8th Cir. 1984). However, Title 18 U.S.C. 3006A(a)(2)(B) authorizes the appointment
4 of counsel at any stage of the case if “the interests of justice so require.” See Rule 8(c), Rules
5 Governing Section 2254 Cases. The court should only appoint counsel under “exceptional
6 circumstances” and after evaluating the likelihood of success on the merits and the ability of the
7 petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.
8 See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The decision to appoint counsel is
9 within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.
10 1986).
In the present case, the Court has reviewed the record and finds that the interests of

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12 justice would be served by the appointment of counsel at this time due to Petitioner’s indigency
13 and given the complexity of the issues involved with respect to Petitioner’s first claim for relief.1
14 In addition, Petitioner has made a sufficient showing as to why he believes he would be
15 successful on the merits of his first claim for relief. Accordingly, in the interests of justice, the
16 Court grants Petitioner’s motion for appointment of counsel. Counsel shall file a supplemental
17 traverse regarding Petitioner’s first claim for relief.
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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner is granted the appointment of counsel;

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2. The matter is hereby referred to the Federal Public Defender’s Office to find counsel
for Petitioner;

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3. A notice of appearance shall be filed with the court by the attorney representing

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Petitioner within twenty (20) days of the date of service of this order;

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4. Within forty-five (45) days from the date that counsel is appointed, Petitioner’s

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Petitioner contends in his first claim for relief that his trial counsel was ineffective because counsel did not
communicate a plea deal of nineteen years that he would have taken had he known about it.

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counsel shall file a supplemental traverse with respect to Petitioner’s first claim for

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relief;

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5. Respondent may file a reply to Petitioner’s supplemental traverse within twenty-one
(21) days of the date Petitioner’s supplemental traverse is filed;

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6. The Clerk of the Court is directed to send a copy of this Order to Petitioner, the
Federal Public Defender’s Office, and to Respondent;

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7. The Clerk of the Court is directed to send a copy of Petitioner’s habeas corpus

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petition (ECF No. 1), the answer (ECF No. 33), and the traverse (ECF No. 35) to the

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Federal Public Defender’s Office; and

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8. Petitioner’s counsel shall contact the Clerk’s Office to make arrangements for copies
of other documents in the file.

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IT IS SO ORDERED.
Dated:

June 18, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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