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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN SCOTT FRANKLIN, 12 Petitioner, 13 14 No. 2:14-cv-2496 KJN P v. ORDER STU SHERMAN, Warden, 15 Respondents. 16 17 Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. 18 § 636(c). On May 8, 2015, petitioner filed a motion for appointment of counsel, and a motion for 19 extension of time to file a request for de novo review of the case. 20 Motion for Appointment of Counsel Petitioner has requested the appointment of counsel. There currently exists no absolute 21 22 right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 23 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage 24 of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. 25 In the present case, the court does not find that the interests of justice would be served by the 26 appointment of counsel. Petitioner’s motion is denied. 27 //// 28 //// 1 1 2 Motion for Extension of Time Petitioner seeks an extension of time to request de novo review of this action. However, 3 petitioner consented to the jurisdiction of the undersigned for all purposes. See 28 U.S.C. 4 § 636(c). Section 636(c)(3) provides, in pertinent part: 5 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. 6 7 8 9 10 11 12 28 U.S.C. § 636(c)(3). Thus, petitioner is not entitled to de novo review of this court’s judgment. If petitioner 13 seeks to challenge the April 17, 2015 judgment, petitioner must file a notice of appeal, which will 14 be heard by the Court of Appeals for the Ninth Circuit. This court will grant petitioner a brief 15 extension of time in which to file a notice of appeal. Petitioner is cautioned that 28 U.S.C. § 2107 16 limits this court’s discretion in granting extensions of time to file an appeal. 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Petitioner’s motion for the appointment of counsel (ECF No. 17) is denied; 19 2. Petitioner’s motion for an extension of time to request de novo review (ECF No. 16) is 20 21 22 denied; and 3. Petitioner is granted twenty-one days in which to file a notice of appeal. Dated: May 15, 2015 23 24 25 /fran2496.110 26 27 28 2

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