Williams v. Filson

Filing 28

ORDER signed by Magistrate Judge Kendall J. Newman on 2/16/2021 DENYING without prejudice petitioner's 27 motion for appointment of counsel. The Clerk is directed to change petitioner's address of record as noted in his 12/29/2020 filing. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MARCELL WILLIAMS,

12

Petitioner,

13
14

No. 2:18-cv-1305 KJM KJN P

v.

ORDER

TIMOTHY FILSON,

15

Respondent.

16
17
18

Petitioner, a state prisoner proceeding pro se, renews his request for the appointment of
counsel.

19

Background

20

Petitioner challenges his 2015 Sacramento County conviction for second degree robbery,

21

but subsequently sustained convictions in the State of Nevada, and was committed to the Nevada

22

State Prison on May 14, 2014, from which he filed the instant petition. (ECF Nos 1 at 1; 23-1 at

23

170, 177.) Petitioner filed the instant petition on May 21, 2018, from Ely State Prison, Nevada,

24

and, following the filing of petitioner’s second amended petition, respondent filed an answer on

25

June 11, 2019. Petitioner was granted sixty days from August 5, 2019, in which to file his

26

traverse. His extension of time expired on October 4, 2019, and petitioner did not file a traverse.

27
28

On April 7, 2020, the court took notice of petitioner’s different address reflected on his
request for status, and changed his address of record to the Southern Desert Correctional Center

1

in Indian Springs, Nevada. (See ECF No. 26.)

2

On December 29, 2020, petitioner renewed his motion for appointment of counsel,

3

claiming that newly-obtained evidence warranted such appointment. Specifically, petitioner

4

claims he needs to access California law and procedures, and the law library at the prison in

5

which he is housed (Ely State Prison, Nevada) does not carry any, and refuses to obtain them.

6

(ECF No. 27 at 1.)1

7

Appointment of Counsel

8

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

9

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

10

authorizes the appointment of counsel at any stage of the case “if the interests of justice so

11

require.” See Rule 8(c), Fed. R. Governing § 2254 Cases.

12

Discussion

13

Petitioner’s motion is based on his alleged need to access California law and procedures,

14

which he claims are not available in the Nevada prison where he is presently housed. However,

15

petitioner’s traverse was due on or before October 4, 2019. Petitioner did not file a second

16

request for extension of time in which to file his traverse, either timely or otherwise. Indeed, the

17

instant motion was signed on December 23, 2020, over fourteen and a half months after

18

petitioner’s deadline expired. Also, the filing of a traverse or reply is not required, and the failure

19

to file a reply does not disqualify a deserving petitioner from obtaining habeas corpus relief. See

20

Rules Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254 (“The petitioner may submit a

21

reply to the respondent’s answer. . . .) (emphasis added); Lee v. Hedgpeth, 2009 WL 25021144, at

22

*1 (E.D. Cal. 2009) (“Petitioner was not required to file a traverse or reply brief. The failure to

23

do so did not necessarily prejudice petitioner.”).

24

////

25

1

26
27
28

Petitioner did not file a separate change of address. It is the petitioner’s responsibility to keep
the court apprised of his current address at all times, by filing a separate notice of change of
address. Local Rule 182(f). However, because it is clear that petitioner’s address has changed,
the Clerk is directed to change petitioner’s address of record. Petitioner is cautioned that absent
the filing of a separate change of address notice, service of documents at petitioner’s address of
record is fully effective. Id.
2

1

Moreover, the documents appended to the instant motion address grievances and

2

responses dated from February to September, 2018. Petitioner fails to demonstrate how

3

grievances from 2018 constitutes newly-discovered evidence.

4
5
6

For all of these reasons, the undersigned does not find that interests of justice require the
appointment of counsel at this time. Thus, petitioner’s motion is denied.
Petitioner’s deadline for filing a traverse or reply has expired, and this habeas action is

7

submitted for decision. As long as petitioner keeps the court apprised of his current address, he

8

will be provided a copy of the court’s decision when issued.

9
10
11
12

Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner’s motion for appointment of counsel (ECF No. 27) is denied without
prejudice.
2. The Clerk of the Court is directed to change petitioner’s address of record as noted in

13

his December 29, 2020 filing.

14

Dated: February 16, 2021

15
16
/will1305.110

17
18
19
20
21
22
23
24
25
26
27
28
3