Stepanov v Miller

Filing 31

ORDER signed by Senior Judge James K. Singleton on 12/11/15 ORDERING that 30 the Motion to Withdraw as Attorney of Record is GRANTED; Attorney Michael Bradley Bigelow is terminated as attorney of record for Petitioner. (Kastilahn, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
MARIYA STEPANOV,
No. 2:12-cv-02644-JKS
Petitioner,
ORDER
[Re: Motion at Docket No. 30]

vs.
DEBORAH K. JOHNSON, Warden,
Central California Women’s Facility,
Respondent.

This Court denied Mariya Stepanov, a state prisoner represented by counsel, habeas relief
and a certificate of appealability on December 9, 2015. Docket Nos. 27, 28. At Docket No. 30,
Stepanov’s retained counsel, Michael Bigelow, moves to withdraw as attorney of record. In his
filing, Bigelow asks to be removed before his client files a notice of appeal with the Ninth
Circuit Court of Appeals, as it is his belief that the Ninth Circuit rules make it more onerous for
counsel to withdraw from a case at that point.
It appears that counsel refers to Ninth Circuit Rule 4-1, which requires counsel wishing
to withdraw after the filing of a notice of appeal to provide a statement of reasons for the
requested withdrawal and follow a number of other steps (including filing a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), if counsel believes the appeal is frivolous). Although
that rule is entitled “Counsel in Criminal Appeals,” it applies also in appeals under 28 U.S.C.
§ 2254 where counsel is appointed by the district court pursuant to 18 U.S.C. § 3006A. Ninth
Cir. Rule 4-1(a). That rule does not apply, however, in cases such as this where counsel was
retained rather than appointed. In any event, because there is no barrier to retained counsel’s
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withdrawal of representation, the Court will grant Mr. Bigelow’s request to withdraw as attorney
of record in this case.
This Court has, as it does in every § 2254 case, considered whether the appointment of
counsel is warranted in light of her retained attorney’s withdrawal. While this Court is not
unmindful of the plight of unrepresented state prisoners in federal habeas proceedings, there is
no constitutional right to counsel in federal habeas proceedings. See Lawrence v. Florida, 549
U.S. 327, 336-37 (2007) (citing Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)).
Appointment of counsel is not required in a habeas corpus proceeding in the absence of an order
granting discovery or an evidentiary hearing. See Rules Governing Section 2254 Cases in the
U.S. District Courts, Rule 6(a), 8(c). This Court may under the Criminal Justice Act appoint
counsel in this case if it determines that the interests of justice so require. 28 U.S.C. § 2254(h);
18 U.S.C. § 3006A(a)(2)(B); see Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (“In
deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the
likelihood of success on the merits as well as the ability of the petitioner to articulate his claims
pro se in light of the complexity of the legal issues involved.”). Because this case has been fully
briefed, and the Court has adjudicated it on the merits and determined that no Certificate of
Appealability should be granted, this Court does not so determine.
The Court further notes that, because it has already determined that no Certificate of
Appealability should be granted, Stepanov must request a certificate of appealability from the
Ninth Circuit Court of Appeals to proceed with her appeal (after she has filed a Notice of Appeal
in this Court). The Ninth Circuit may issue a certificate of appealability only if Stepanov makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also

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Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Stepanov must show that “reasonable jurists
could debate whether . . . the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537
U.S. at 336 (citation and internal quotation marks omitted). If, in preparing her application for a
certificate of appealability to the Ninth Circuit, Stepanov believes that counsel is necessary on
appeal, she should request the appointment of counsel from the Ninth Circuit at that time.
IT IS THEREFORE ORDERED THAT the Motion to Withdraw as Attorney of
Record at Docket No. 30 is GRANTED.
Dated: December 11, 2015.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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