Lindsey v. Hedgpeth

Filing 33

ORDER DENYING POST-JUDGMENT MOTION; ORDER REVOKING IN FORMA PAUPERIS STATUS 26 27 27 29 30 32 (Illston, Susan) (Filed on 12/3/2012)

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