McNeely v. McGinness

Filing 12

ORDER re 2 3 DENYING MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING IN FORMA PAUPERIS APPLICATION. Signed by Judge Claudia Wilken on 4/27/09. (scc, COURT STAFF) (Filed on 4/27/2009)

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 DOCK MCNEELY,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 09-01203 CW (PR) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND GRANTING IN FORMA PAUPERIS APPLICATION

Petitioner. v. JOHN MCGINNESS, Respondent. /

Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. also seeks leave to proceed in forma pauperis. 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 Petitioner

He has also

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 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

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

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. 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 reconsideration should

the Court on its own motion find an evidentiary hearing necessary following consideration of the merits of Petitioner's claims. Petitioner's application to proceed in forma pauperis is GRANTED. The Court will review Petitioner's habeas petition in a

separate written Order. IT IS SO ORDERED. Dated: 4/27/09 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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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 DOCK MCNEELY, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-01203 CW CERTIFICATE OF SERVICE

JOHN MCGINNESS et al, Defendant. /

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 April 27, 2009, 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.

Dock McNeely X-2333938 NAPA STATE HOSPITAL 2100 NAPA-VALLEJO HIGHWAY NAPA, CA 94558-6293 Dated: April 27, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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