Irving v. Davey

Filing 24

ORDER signed by Magistrate Judge Allison Claire on 9/21/16 ORDERING that petitioner's request for appointment of counsel (ECF No. 23 ) is DENIED without prejudice. Petitioner's third request for an extension of time to file an amended petition (ECF No. 22 ) is GRANTED, and petitioner shall have 30 days from service of this order to file an amended petition. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOYDD D.J. IRVING,

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No. 2:15-cv-2037 AC P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Currently before the court are petitioner’s motions for

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appointment of counsel (ECF No. 23) and for an extension of time to file an amended petition

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(ECF No. 22).

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This is petitioner’s second request for the appointment of counsel. See ECF No. 15.

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There currently exists no absolute right to appointment of counsel in habeas proceedings. See

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Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes

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the appointment of counsel at any stage of the case “if the interests of justice so require.” See

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Rule 8(c), Fed. R. Governing § 2254 Cases. As he was previously advised, petitioner has not yet

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stated any grounds for relief and is being given an opportunity to amend the petition to correct

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this omission. In the absence of cognizable claims, the court cannot determine whether

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appointment of counsel might be appropriate. Petitioner asserts that he requires counsel because
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he suffers from borderline personality disorder. ECF No. 23 at 1. However, he provides no

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records verifying that he has been diagnosed with and is being treated for this condition. Nor

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does he offer any evidence of how this condition affects his ability to proceed without the

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assistance of counsel. The fact that petitioner may be diagnosed with or receiving treatment for a

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mental health condition, without more, does not warrant appointment of counsel. The motion will

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therefore be denied without prejudice. Any future motion for appointment of counsel based on

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petitioner’s mental health must include evidence of petitioner’s diagnosis and how it prevents him

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from representing himself. Petitioner is cautioned, however, that a showing of mental impairment

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will not entitle him to appointed counsel in the absence of viable claims for relief.

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Petitioner has filed a third request for an unspecified extension of his time to file an

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amended petition. ECF No. 22. Petitioner states that he has been denied library access on three

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separate occasions since the last extension he was granted. Id. The court will grant petitioner an

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additional thirty days to file an amended petition. Petitioner is once again reminded that any

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further requests for extension should identify how much time petitioner is seeking and why the

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requested amount of time is necessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for appointment of counsel (ECF No. 23) is denied without

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prejudice.
2. Petitioner’s third request for an extension of time to file an amended petition (ECF No.

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22) is granted, and petitioner shall have thirty days from service of this order to file an amended

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petition.

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DATED: September 21, 2016

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