Lindsey v. Hedgpeth
Filing
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ORDER GRANTING PETITIONER'S MOTION TO EXTEND TIME TO FILE A NOTICE OF APPEAL;ORDER DENYING MOTION FOR THE APPOINTMENT OF COUNSEL ON APPEAL 17 (Illston, Susan) (Filed on 8/21/2012) (Additional attachment(s) added on 8/21/2012: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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EDWARD LINDSEY,
No. C 11-0638 SI (PR)
Petitioner,
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ORDER GRANTING PETITIONER’S
MOTION TO EXTEND TIME TO FILE
A NOTICE OF APPEAL;
v.
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ANTHONY HEDGPETH,
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Respondent.
ORDER DENYING MOTION FOR THE
APPOINTMENT OF COUNSEL ON
APPEAL
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This is a closed federal habeas corpus action. The petition was denied and judgment was
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entered in favor of respondent on July 10, 2012. Petitioner now moves for an extension of time
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to file a notice of appeal, and to appoint counsel for purposes of his appeal. (Docket No. 17 and
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18).
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Petitioner’s motion for an extension of time is GRANTED. An appeal of right may be
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taken only by filing a valid notice of appeal in the district court within the time allowed by Fed.
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R. App. P. (“FRAP”) 4. See FRAP 3(a)(1). The notice of appeal must be filed within 30 days
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after judgment is entered. See FRAP 4(a)(1). Relief from the deadline for filing a notice of
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appeal may be obtained by a motion in the district court under FRAP 4(a)(5) (motion for an
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extension of time) or 4(a)(6) (motion to reopen time to file appeal). FRAP 4(a)(5) allows a
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motion for an extension of time if the party requests it within thirty days of the expiration of the
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time to file the notice and shows an excusable neglect or good cause. Petitioner’s motion was
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signed on August 7, 2012, and therefore is timely filed within the meaning of FRAP 4(a)(5).
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(Though stamped as received by this Court on August 13, for purposes of the present motion the
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Court assumes that petitioner put the motion in the prison mail the day he signed it and will use
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that as the filing date under the prisoner mailbox rule. See generally Houston v. Lack, 487 U.S.
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266, 276 (1988).) The Court also finds that petitioner has shown good cause.
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“No extension under this rule 4(a)(5) may exceed 30 days after the expiration of the
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prescribed time [viz., 30 days from the date of entry of judgment] or 14 days after the date when
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the order granting the motion is entered, whichever is later.” FRAP 4(a)(5)(C). Here, that is 30
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days from August 9, 2012. Accordingly, petitioner must file his notice of appeal on or before
United States District Court
For the Northern District of California
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September 8, 2012.
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Petitioner’s motion to appoint counsel for purposes of his appeal is DENIED. There is
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no right to counsel in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th
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Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel
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to represent a habeas petitioner whenever “the court determines that the interests of justice so
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require” and such person is financially unable to obtain representation. The decision to appoint
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counsel is within the discretion of the district court, see Chaney v. Lewis, 801 F.2d 1191, 1196
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(9th Cir. 1986), and should be granted only when exceptional circumstances are present. See
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generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at
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383–86 (2d ed. 1994). Petitioner has not shown that there are exceptional circumstances
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warranting appointment of counsel. Petitioner may of course ask the federal appellate court for
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the appointment of counsel.
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The Clerk shall terminate Docket Nos 17 and 18.
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IT IS SO ORDERED.
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DATED: August 21, 2012
SUSAN ILLSTON
United States District Judge
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