Cross v. Harris

Filing 18

ORDER Denying Second 17 Motion to Appoint Counsel, signed by Magistrate Judge Sheila K. Oberto on 5/14/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TOMMY WILLIAM CROSS,

No. 1:17-cv-00877-LJO-SKO (HC)

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Petitioner,
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ORDER DENYING SECOND MOTION
FOR APPOINTMENT OF COUNSEL

v.
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KAMALA HARRIS,
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Respondent.

(Doc. 17)

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Petitioner, Tommy William Cross, is proceeding with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, and now moves for appointment of counsel.
Petitioner contends that the Court should appoint counsel based on California Rule of
Court (“CRC”) 4.551(c)(2) and his indigence. CRC 4.551(c)(2) states, “[o]n issuing an order to
show cause, the court must appoint counsel for any unrepresented petitioner who desires but
cannot afford counsel.” The CRC only applies to petitions for writ of habeas corpus in California
courts. This Court applies the Rules Governing Section 2254 cases; therefore, the Court will not
appoint counsel based on the CRC.
In federal habeas proceedings, no absolute right to appointment of counsel currently
exists. See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727
F.2d 773, 774 (8th Cir. 1984). Nonetheless, a court may appoint counsel at any stage of the case

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"if the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); Rule 8(c), Rules Governing
Section 2254 Cases.

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Petitioner states he is indigent; however, the majority of prisoners share this same
characteristic. Petitioner has competently filed a petition for writ of habeas corpus and alleges no
other basis by which the Court may appoint counsel on his behalf.

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Based on the foregoing, Petitioner's motion for appointment of counsel is hereby
DENIED.

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IT IS SO ORDERED.
Dated:

May 14, 2018

/s/

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Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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