Chavarria v. Hamlet

Filing 50

ORDER RE: MOTIONS. Granting 42 petitioner's motion for appointment of counsel Mr. Rosenbaum. Granting 47 , 59 petitioner's motion for extension of time to file his reply. Petitioner's reply shall be file no later than 11/18/09. Denying as moot 43 respondent's motion for extension of time to file an answer to the habeas petition, as respondent's answe was filed on 8/17/09. (cc: Neil J. Rosenbaum, Marcus D. Chavarria) (SI, COURT STAFF) (Filed on 10/20/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DISCUSSION The Court previously denied petitioner's pro se habeas petition. Petitioner appealed to the Ninth Circuit, and the Court appointed Neil Rosenbaum to represent petitioner in his appeal. At petitioner's request, the Ninth Circuit dismissed his appeal and remanded the case back to this Court so petitioner could seek leave to amend his original habeas petition. This Court subsequently granted petitioner's motion for leave to file an amended habeas petition, and noted that Mr. Rosenbaum's representation of petitioner had ended upon remand from the Ninth Circuit. Petitioner now seeks re-appointment of Mr. Rosenbaum as counsel. A district court may appoint counsel to represent a habeas petitioner whenever "the court v. JIM HAMLET, WARDEN, Respondent. / MARCUS DANIEL CHAVARRIA, Petitioner, No. C 01-02242 SI ORDER RE MOTIONS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Petitioner Marcus Chavarria has moved for appointment of counsel and for extension of time to file his traverse (reply) in support of his petition for a writ of habeas corpus. Respondent, Warden Jim Hamlet, has moved for a third extension of time to file an answer to the habeas petition. For the reasons set forth below, the Court hereby GRANTS petitioner's motions for appointment of counsel and for extension of time, and DENIES as moot respondent's motion for extension of time.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

determines that the interests of justice so require" and that the petitioner is "financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986). Petitioner has stated in a sworn declaration that he is indigent and unable to understand legal proceedings. Moreover, Mr. Rosenbaum has filed a letter with the Court requesting that he be reappointed as petitioner's counsel on the grounds that petitioner is indigent, "functionally illiterate and has no education in law," and has no alternative way to retain counsel. In light of these representations, the Court concludes that it is appropriate to appoint Mr. Rosenbaum as petitioner's counsel and GRANTS petitioner's motion for appointment of counsel. (Docket No. 42). The Court GRANTS petitioner's motion for extension of time to file his reply. (Docket Nos. 47,49). Petitioner's reply shall be filed no later than November 18, 2009. The Court DENIES as moot respondent's motion for extension of time to file an answer to the habeas petition (Docket No. 43), as respondent's answer was filed on August 17, 2009.

IT IS SO ORDERED.

Dated: October 20, 2009

SUSAN ILLSTON United States District Judge

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