Darbey v. Walker

Filing 31

ORDER by Judge ARMSTRONG denying 28 Motion for Extension of Time to File; denying 30 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 2/25/2013)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 AVERY DARBEY, Petitioner, 7 8 vs. 9 JAMES WALKER, 10 Case No: C 09-1572 SBA (pr) ORDER DENYING REQUEST FOR EXTENSION OF TIME TO FILE CERTIFICATE OF APPEALIBILITY AND DENYING MOTION FOR APPOINTMENT OF COUNSEL Respondent. Dkt. 28, 30 11 12 13 On September 28, 2012, the Court denied Petitioner’s petition for a writ of habeas 14 corpus and declined to issue a certificate of appealibility (COA). Dkt. 23. On November 15 29, 2012, Petitioner filed a notice of appeal, a motion for an extension of time to request a 16 COA before the Ninth Circuit, and a motion for appointment of counsel. Dkt. 26, 28, 30. 17 With regard to Petitioner’s first request, Petitioner’s notice of appeal serves as a 18 request for a COA, and therefore, he need not take any further action to protect his 19 appellate rights. See Fed. R. App. P. 22(b)(2). Therefore, Petitioner’s request for an 20 extension of time to submit a COA request to the Ninth Circuit is DENIED as moot. 21 As to Petitioner’s request for appellate counsel, the Court notes that there is no right 22 to counsel in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 23 1986). Under 18 U.S.C. § 3006A(a)(2)(B), however, a district court may appoint counsel to 24 represent a habeas petitioner whenever “the court determines that the interests of justice so 25 require” and such person is financially unable to obtain representation. The decision to 26 appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 27 1191, 1196 (9th Cir.1986); Knaubert, 791 F.2d at 728. Here, Petitioner’s claims are typical 28 of those that arise in habeas actions and are not especially complex. This is not an 1 exceptional case that would warrant representation on federal habeas review. Accordingly, 2 Petitioner’s request for appointment of counsel on appeal is DENIED. Accordingly, 3 IT IS HEREBY ORDERED THAT: 4 1. 5 Petitioner’s motion for an extension of time to file his COA before the Ninth Circuit is DENIED as moot. 6 2. Petitioner’s motion for appointment of counsel is DENIED. 7 3. This Order terminates Docket 28 and 30. 8 IT IS SO ORDERED. 9 Dated: February 22, 2013 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- 1 2 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 AVERY DARBEY, 5 Plaintiff, 6 7 8 9 v. JAMES WALKER et al, Defendant. / 10 11 Case Number: CV09-01572 SBA 12 CERTIFICATE OF SERVICE 13 14 15 16 17 18 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 February 25, 2013, 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. 19 20 21 22 23 Avery M. Darbey T-39009 Salinas Valley State Prison C-Facility #215 P.O. Box 1050 Soledad, CA 93960-1060 24 Dated: February 25, 2013 25 26 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk 27 28 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 G:\PRO-SE\SBA\HC.09\09-1572 - Darbey - Order re Ext of Time.docx 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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