Lindsey v. Hedgpeth

Filing 33


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 EDWARD LINDSEY, United States District Court For the Northern District of California 10 11 12 13 14 No. C 11-0638 SI (PR) Petitioner, ORDER DENYING POST-JUDGMENT MOTION; v. ORDER REVOKING IN FORMA PAUPERIS STATUS ANTHONY HEDGPETH, Respondent. / 15 16 This closed federal habeas corpus action is on appeal. Petitioner’s motion for an 17 extension of time to file an appeal (Docket No. 26), and his motion to reopen the time to file 18 an appeal and for reconsideration (Docket No. 27), are DENIED as moot because he has filed 19 a notice of appeal, which has been sent to the Court of Appeals. His motion for a certificate 20 of appealability (Docket No. 29) is DENIED as moot, the Court having denied such 21 certificate in its order denying the petition. 22 Petitioner’s motion for the appointment of counsel (Docket No. 30) is DENIED. 23 There is no right to counsel in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 24 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to 25 appoint counsel to represent a habeas petitioner whenever “the court determines that the 26 interests of justice so require” and such person is financially unable to obtain representation. 27 The decision to appoint counsel is within the discretion of the district court, see Chaney v. 28 Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), and should be granted only when exceptional 1 circumstances are present. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus 2 Practice and Procedure § 12.3b at 383–86 (2d ed. 1994). Petitioner has not shown that there 3 are exceptional circumstances warranting the appointment of counsel. 4 Petitioner’s motion to proceed in forma pauperis on appeal (Docket No. 32) is 5 DENIED. There are no valid grounds on which an appeal can be based. Consequently, the 6 Court certifies that any appeal taken from the judgment and order denying the petition will 7 not be taken in good faith and is therefore frivolous. Fed. R. App. P. (“FRAP”) 24(a)(3)(A); 8 Ellis v. United States, 356 U.S. 674, 674–75 (1958); Hooker v. American Airlines, 9 302 F.3d 1091, 1092 (9th Cir. 2002). Accordingly, petitioner’s IFP status is hereby United States District Court For the Northern District of California 10 REVOKED. The Clerk shall forthwith notify petitioner and the Court of Appeals of this 11 order. See FRAP 24(a)(4). Petitioner may file a motion for leave to proceed IFP on appeal 12 in the Court of Appeals within thirty days after service of notice of this order. See FRAP 13 24(a)(5). Any such motion “must include a copy of the affidavit filed in the district court and 14 the district court’s statement of reasons for its action.” Id. 15 The Clerk shall terminate Docket Nos. 26, 27, 29, 30 and 32. 16 IT IS SO ORDERED. 17 DATED: December 3, 2012 SUSAN ILLSTON United States District Judge 18 19 20 21 22 23 24 25 26 27 28 2

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