Franklin v. People Of California

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 05/15/15 denying 17 Motion to Appoint Counsel and denying 16 Motion for Extension of time to request a de novo review. Petitioner is granted 21 days in which to file a notice of appeal. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHAN SCOTT FRANKLIN,

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Petitioner,

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No. 2:14-cv-2496 KJN P

v.

ORDER

STU SHERMAN, Warden,

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Respondents.

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Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C.

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§ 636(c). On May 8, 2015, petitioner filed a motion for appointment of counsel, and a motion for

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extension of time to file a request for de novo review of the case.

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Motion for Appointment of Counsel
Petitioner has requested the appointment of counsel. There currently exists no absolute

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right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460

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(9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage

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of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases.

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In the present case, the court does not find that the interests of justice would be served by the

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appointment of counsel. Petitioner’s motion is denied.

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Motion for Extension of Time
Petitioner seeks an extension of time to request de novo review of this action. However,

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petitioner consented to the jurisdiction of the undersigned for all purposes. See 28 U.S.C.

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§ 636(c). Section 636(c)(3) provides, in pertinent part:

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Upon entry of judgment . . . , an aggrieved party may appeal
directly to the appropriate United States court of appeals from the
judgment of the magistrate judge in the same manner as an appeal
from any other judgment of a district court. The consent of the
parties allows a magistrate judge designated to exercise civil
jurisdiction under paragraph (1) of this subsection to direct the
entry of a judgment of the district court in accordance with the
Federal Rules of Civil Procedure. Nothing in this paragraph shall be
construed as a limitation of any party's right to seek review by the
Supreme Court of the United States.

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28 U.S.C. § 636(c)(3).
Thus, petitioner is not entitled to de novo review of this court’s judgment. If petitioner

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seeks to challenge the April 17, 2015 judgment, petitioner must file a notice of appeal, which will

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be heard by the Court of Appeals for the Ninth Circuit. This court will grant petitioner a brief

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extension of time in which to file a notice of appeal. Petitioner is cautioned that 28 U.S.C. § 2107

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limits this court’s discretion in granting extensions of time to file an appeal.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for the appointment of counsel (ECF No. 17) is denied;

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2. Petitioner’s motion for an extension of time to request de novo review (ECF No. 16) is

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denied; and
3. Petitioner is granted twenty-one days in which to file a notice of appeal.
Dated: May 15, 2015

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/fran2496.110

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