Duke v. Walker

Filing 4

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL. Signed by Judge Claudia Wilken on 6/19/07. (scc, COURT STAFF) (Filed on 6/19/2007)

Duke v. Walker

Doc. 4

Case 4:07-cv-02882-CW

Document 4

Filed 06/19/2007

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JAMES WALKER, Acting Warden, Respondent. / JOHN ANTHONY DUKE SR., Petitioner, No. C 07-02882 CW (PR) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Petitioner has requested appointment of counsel in this action. The Sixth Amendment right to counsel does not apply in habeas corpus actions. Cir. 1986). See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th

Title 18 U.S.C. § 3006A(a)(2)(B), however, authorizes

a district court 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. The decision to appoint counsel is within the See Chaney v. Lewis, 801 F.2d

discretion of the district court.

1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The courts have made

appointment of counsel the exception rather than the rule by

Dockets.Justia.com

Case 4:07-cv-02882-CW

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Filed 06/19/2007

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in which petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See generally 1 J.

Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only

when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See

Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). At this early stage of the proceedings the Court is unable to determine whether the appointment of counsel is mandated for Petitioner. The Court notes that Petitioner has presented his

claims adequately in the petition, and no evidentiary hearing appears necessary. Accordingly, the interests of justice do not

require appointment of counsel at this time, and Petitioner's request is DENIED. This denial is without prejudice to the Court's

sua sponte reconsideration should the Court find an evidentiary hearing necessary following consideration of the merits of Petitioner's claims. IT IS SO ORDERED. Dated: 6/19/07 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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Case 4:07-cv-02882-CW

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Filed 06/19/2007

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOHN ANTHONY DUKE SR, Plaintiff, v. JIMMY WALKER et al, Defendant. /

Case Number: CV07-02882 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 19, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

John Anthony Duke P-97706 C.S.P. Sac IV P.O. Box 290066 Represa, CA 95671-0066 Dated: June 19, 2007 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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