Tolden v. Tilton

Filing 26

ORDER by Judge Claudia Wilken granting 22 Motion for Leave to Appeal in forma pauperis; granting 22 Motion to Appoint Counsel ; granting 23 Motion for Certificate of Appealability (cwlc1, COURT STAFF) (Filed on 4/13/2010)

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 DELANO TOLDEN, ) ) Petitioner, ) ) v. ) ) GARY SWARTHOUT, Warden, ) ) Respondent. ) _________________________________ ) No. C 08-3782 CW ORDER GRANTING CERTIFICATE OF APPEALABILITY AND PETITIONER'S REQUESTS TO APPOINT COUNSEL AND TO PROCEED IN FORMA PAUPERIS ON APPEAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. On March 1, 2010, the Court entered judgment Petitioner seeks a certificate of

denying the petition.

appealability regarding all four claims in his habeas petition and requests the appointment of appellate counsel and leave to proceed in forma pauperis on appeal. A habeas petitioner may not appeal a final order in a federal habeas proceeding without first obtaining a certificate of appealability (formerly known as a "certificate of probable cause to appeal"). 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A certificate of appealability should be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate

of appealability must indicate which issue or issues satisfy the showing required by § 2253(c)(2). 28 U.S.C. § 2253(c)(3).

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

The Court finds that Petitioner has made a sufficient showing of the denial of a constitutional right in regard to his Eighth Amendment claim of cruel and unusual punishment and his two due process claims regarding improper jury instructions. Petitioner's request for a certificate of appealability on these three claims is GRANTED. Petitioner also requests appointment of counsel. The Sixth

Amendment's right to counsel does not apply in habeas corpus actions. 1986). Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.

However, 18 U.S.C. § 3006A(a)(2)(B) 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 discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th

Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.) (1984). Appointment is mandatory only when

the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. 801 F.2d at 1196. Because of Petitioner's low mental functioning, his motion for appointment of counsel is GRANTED. Attorney Victoria Because Ms. Chaney,

Stafford requests that she be appointed as counsel.

Stafford has represented Petitioner in his state appeal and habeas proceedings in this Court, she is already familiar with the case. Therefore, the Court grants Petitioner's request that

Ms. Stafford be appointed to represent him on appeal.

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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 DATED: April 13, 2010 IT IS SO ORDERED.

CONCLUSION Accordingly, the Court grants Petitioner's certificate of appealability on the three claims discussed above and grants his requests for the appointment of Victoria Stafford as appellate counsel and for leave to proceed in forma pauperis on appeal.

CLAUDIA WILKEN United States District Judge

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