Miller v. Frauenheim

Filing 56

ORDER signed by Senior Judge James K. Singleton on 4/9/19 DENYING 53 Motion to Appoint Counsel & Proceed IFP. (Coll, A)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
BRAD ROBERT MILLER,
No. 2:15-cv-01365-JKS
Petitioner,
vs.

ORDER
[Re: Motion at Docket No. 53]

CRAIG KOENIG, Warden, Correctional
Training Facility-Soledad,
Respondent.

This Court denied Brad Robert Miller, a state prisoner proceeding pro se, habeas relief
and a certificate of appealability on March 22, 2019. Docket Nos. 50, 51. Miller timely filed a
notice of appeal with this Court dated April 2, 2019. Docket No. 52. Miller concurrently moved
for the appointment of counsel and to proceed in forma pauperis on appeal. Docket No. 53.
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 considered and adjudicated it on the merits
and determined that no Certificate of Appealability should be granted, this Court does not so
determine. Miller’s request for counsel is therefore denied. Miller may renew his request for the
appointment of counsel in the event he obtains a certificate of appealability from the Ninth
Circuit Court of Appeals.
Miller also moves for leave to appeal in forma pauperis. Docket No. 53. As this Court
has already granted Miller leave to proceed in forma pauperis, Docket No. 7, it is unnecessary
for him to obtain further authorization from this Court, see FED. R. APP. P. 24(a)(3).
IT IS THEREFORE ORDERED THAT the Motion to Appoint Counsel and Proceed
In Forma Pauperis is DENIED.
Dated: April 9, 2019.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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