Marks v. Frauenheim
ORDER signed by Magistrate Judge Deborah Barnes on 1/30/2017 ORDERING petitioner's 21 , 24 motions for appointment of counsel are DENIED without prejudice; petitioner's 24 motion for an evidentiary hearing is DENIED without prejudice as premature. (Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:15-cv-0665 JAM DB P
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. This case is proceeding on petitioner’s first
amended petition filed September 14, 2015. (ECF No. 8.) Therein, petitioner claims ineffective
assistance of his trial and appellate counsel, that the prosecution withheld evidence in violation of
Brady v. Maryland, and that he was denied an opportunity to cross-examine the victim at trial in
violation of the Confrontation Clause. On November 24, 2015, respondent filed an answer to the
petition and on December 11, 2015, petitioner filed a traverse.
Pending before the court are petitioner’s motions for the appointment of counsel and for
an evidentiary hearing. (ECF Nos. 21, 24.) Petitioner seeks the appointment of counsel due to
the complexity of the issues in his case. He moves for an evidentiary hearing based on his
discovery of new evidence.
There currently exists no absolute right to appointment of counsel in habeas proceedings.
See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir.1996). However, 18 U.S.C. § 3006A
authorizes the appointment of counsel at any stage of the case “if the interests of justice so
require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not
find that the interests of justice would be served by the appointment of counsel at the present
time. Accordingly, petitioner's motion for appointment of counsel will be denied.
Petitioner’s motion for an evidentiary hearing is premature. Under 28 U.S.C. § 2254(d),
this court may not consider evidence which has not been presented to the state court when making
a determination of whether the state court’s adjudication of the claim “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law” or
“resulted in a decision that was based on an unreasonable determinate of the facts.” See Cullen v.
Pinholster, 563 U.S. 170, 182-83 (2011). If, after considering the merits of petitioner’s petition,
the court finds petitioner has satisfied section 2254(d), then the court may consider a motion for
an evidentiary hearing. Accordingly, petitioner’s motion for an evidentiary hearing will be
denied as premature.
For the foregoing reasons, IT IS HEREBY ORDERED as follows:
Petitioner’s December 11, 2015 and August 8, 2016 Motions for Appointment of
Counsel (ECF No. 21, 24) are denied without prejudice to a renewal of the motion at a
later stage of the proceedings;
2. Petitioner’s Motion for an Evidentiary Hearing (ECF No. 24) is denied without
prejudice as premature.
Dated: January 30, 2017
DLB1/prisoner-habeas/mark0665.evi hrg or
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?