Burpee v. Hedgpeth

Filing 15

ORDER by Judge Edward M. Chen Granting 5 Petitioner's Second Motion for Leave to Proceed In Forma Pauperis; Denying 11 Petitioner's Motion to Appoint Counsel; Granting 13 Respondent's Motion for Extension of Time to Answer; Denying 14 Petitioner's Motion for Default Judgment. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/7/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 TODD D. BURPEE, 9 Petitioner, v. 11 For the Northern District of California United States District Court 10 No. C-12-3717 EMC (pr) A. HEDGPETH, Warden, 12 ORDER Respondent. ___________________________________/ 13 14 15 Respondent’s request for an extension of time to respond to the petition for writ of habeas 16 corpus is GRANTED. (Docket # 13.) The Court now sets the following new briefing schedule on 17 the petition: On or before February 28, 2013, Respondent must file and serve on Petitioner his 18 response. On or before March 29, 2013, Petitioner must file and serve on Respondent’s counsel his 19 traverse. 20 Petitioner has requested that counsel be appointed to represent him in this action. A district 21 court may appoint counsel to represent a habeas petitioner whenever “the court determines that the 22 interests of justice so require” and such person is financially unable to obtain representation. 18 23 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district 24 court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only 25 when the circumstances of a particular case indicate that appointed counsel is necessary to prevent 26 due process violations. See id. The interests of justice do not require appointment of counsel at this 27 time. The request for appointment of counsel is DENIED. (Docket # 11.) 28 Petitioner’s second in forma pauperis application is GRANTED. (Docket # 5.) 1 Petitioner’s request for default judgment is DENIED. (Docket # 14.) Respondent was not 2 and is not in default. Further, the availability of habeas relief by default is at least doubtful. See 3 Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (“failure to respond to claims raised in a 4 petition for habeas corpus does not entitle the petitioner to a default judgment”). 5 6 IT IS SO ORDERED. 7 8 Dated: January 7, 2013 9 _________________________ EDWARD M. CHEN United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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