Kerestesy v. State of California

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 06/29/15 denying 15 Motion to Appoint Counsel and granting 14 Motion for Extension of time. The traverse shall be filed on or before 8/14/15. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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XAVIER KERESTESY,

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No. 2:15-cv-0545 MCE AC P

Petitioner,
v.

ORDER

THE ATTORNEY GENERAL OF THE
STATE OF CALIFORNIA,
Respondent.

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Petitioner proceeds pro se and in forma pauperis with a habeas corpus petition pursuant to

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28 U.S.C. § 2254. Although presently incarcerated in Oregon State Penitentiary on convictions

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imposed in that state, petitioner is challenging a California plea bargain and sentence that he is

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scheduled to serve after his release from Oregon. The court ordered service of petitioner’s habeas

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petition on April 1, 2015, and respondent filed an answer on May 21, 2015. Petitioner’s traverse

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was due thirty days thereafter.

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Presently pending are two matters: (1) petitioner’s renewed request for appointment of
counsel; and (2) petitioner’s request for an extension of time within which to file his traverse.
The Sixth Amendment right to counsel does not extend to federal habeas corpus actions

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filed by state prisoners under Section 2254. McCleskey v. Zant, 499 U.S. 467, 495 (1991);

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Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). Nevertheless, a district court may appoint
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counsel for an indigent habeas petitioner upon a finding that “the interests of justice so require.”

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18 U.S.C. § 3006A(a)(2)(B); see also Rule 8(c), Fed. R. Governing § 2254 Cases. Such a finding

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is generally premised on a determination that “appointed counsel is necessary to prevent due

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process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Thus, for example,

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petitioners must be represented by appointed counsel if the court conducts an evidentiary hearing.

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Knaubert v. Goldsmith, 791 F.2d 722, 729-30 (9th Cir. 1986).

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In the instant case, the court finds that neither due process nor broader interests of justice

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require appointment of counsel at this time. Petitioner states that he is indigent, untrained in the

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law, and without access to California legal materials because he is incarcerated in an Oregon

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prison. Indigence and lack of legal training are common to prisoner litigants, and do not require

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appointment of counsel. The court appreciates that petitioner’s lack of access to California legal

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materials makes it difficult for him to respond to the legal arguments set forth in the answer.

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Petitioner is assured that the court will carefully determine and apply the applicable law.

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Petitioner also contends that he requires appointed counsel in order to conduct

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investigation, obtain an affidavit from trial counsel, and prepare for evidentiary hearing. Unless

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and until the court determines that an evidentiary hearing is warranted, appointment is not

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appropriate for these purposes. This court cannot consider any evidence that was not previously

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presented to the state habeas court, including supporting declarations, unless petitioner’s claims

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first clear the hurdles imposed by 28 U.S.C. § 2254(d). See Cullen v. Pinholster, 131 S. Ct. 1388,

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1399 (2011). If any of petitioner’s claims survive review under § 2254(d), the court will

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reconsider the appointment of counsel at that time.

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Petitioner’s motion for an extension of time within which to file his traverse will be
granted in part.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for appointment of counsel, ECF No. 15, is denied; and

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2. Petitioner’s motion for an extension of time to file his traverse, ECF No. 14, is granted;

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the traverse shall be filed on or before August 14, 2015.

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DATED: June 29, 2015

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