Chairez v. Adams

Filing 12

ORDER DENYING 11 MOTION FOR RECONSIDERATION AS PREMATURE; SETTING NEW BRIEFING SCHEDULE ON PENDING MOTION TO DISMISS; DENYING 7 MOTION FOR APPOINTMENT OF COUNSEL. Signed by Judge Maxine M. Chesney on October 29, 2008. (mmcsec, COURT STAFF) (Filed on 10/29/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ARTURO CHAIREZ, ) ) Petitioner, ) ) v. ) ) M. ADAMS, Warden, ) ) Respondent. ) ______________________________ ) No. C 07-5767 MMC (PR) ORDER DENYING MOTION FOR RECONSIDERATION AS PREMATURE; SETTING NEW BRIEFING SCHEDULE ON PENDING MOTION TO DISMISS; DENYING MOTION FOR APPOINTMENT OF COUNSEL (Docket Nos. 7 & 11)

United States District Court

11
For the Northern District of California

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Before the Court are petitioner's motion for reconsideration and motion for appointment of counsel. For the following reasons, the motions will be denied and the Court will set a revised briefing schedule on respondent's motion to dismiss. On November 14, 2007, petitioner, a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 11, 2008, the Court ordered respondent to show cause why the petition should not be granted; also in said order, the Court set a briefing schedule by which, inter alia, any motion to dismiss was to be filed by respondent within 90 days of the filing of said order and petitioner's opposition or statement of non-opposition to such motion was to be filed within 30 days thereafter. On July 16, 2008, respondent filed a motion to dismiss the petition as untimely. Petitioner did not file a response thereto. Rather, on August 6, 2008, petitioner filed a motion for reconsideration, by which he asks the Court to reconsider its dismissal of the above-titled action in light of the fact that petitioner, for various reasons, did not have an adequate opportunity to respond to the motion to dismiss. Petitioner's motion for

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reconsideration is premature, as respondent's motion to dismiss is still pending and no order of dismissal has been entered in this matter. Accordingly, Petitioner's motion for reconsideration is hereby DENIED. Good cause appearing, however, the Court hereby SETS the following revised briefing schedule. 1. Petitioner shall file with the Court and serve on respondent his opposition or statement of non-opposition to respondent's motion to dismiss within thirty (30) days of the date this order is filed. 2. If petitioner files an opposition, respondent shall file a reply thereto within fourteen (14) days of the date the opposition is filed. 3. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the Court so orders at a later date. As noted, petitioner also moves for appointment of counsel. The Sixth Amendment's right to counsel does not apply in habeas actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986). Pursuant to statute, however, a district court is authorized to appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require and such person is financially unable to obtain representation." See 18 U.S.C. § 3006A(a)(2)(B). Here, petitioner's claims have been adequately presented in the petition and no other grounds exist that would require the appointment of counsel at this time. Accordingly, as the interests of justice do not require appointment of counsel, petitioner's motion is hereby DENIED. This order terminates Docket Nos. 7 and 11. IT IS SO ORDERED. DATED: October 29, 2008 _________________________ MAXINE M. CHESNEY United States District Judge

United States District Court

11
For the Northern District of California

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