Latimore v. Cullen

Filing 6

ORDER by Judge Claudia Wilken Denying 5 Motion to Appoint Counsel. (ndr, COURT STAFF) (Filed on 5/24/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 11-00538 CW (PR)

WILLIE E. LATIMORE,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Petitioner,
v.

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VINCE CULLEN, Warden,

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Respondent.

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Petitioner has filed a motion for appointment of counsel in
this action.
The Sixth Amendment right to counsel does not apply in habeas

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corpus actions.

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Cir. 1986).

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a district court to appoint counsel to represent a habeas

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petitioner whenever "the court determines that the interests of

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justice so require" and such person is financially unable to obtain

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representation.

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discretion of the district court.

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1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v.

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Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th

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

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

The courts have made

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appointment of counsel the exception rather than the rule by

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limiting it to: (1) capital cases; (2) cases that turn on

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substantial and complex procedural, legal or mixed legal and

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factual questions; (3) cases involving uneducated or mentally or

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physically impaired petitioners; (4) cases likely to require the

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assistance of experts either in framing or in trying the claims;

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(5) cases in which petitioner is in no position to investigate

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crucial facts; and (6) factually complex cases.

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Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure

See generally 1 J.

United States District Court
For the Northern District of California

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§ 12.3b at 383-86 (2d ed. 1994).

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when the circumstances of a particular case indicate that appointed

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counsel is necessary to prevent due process violations.

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Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th

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Cir. 1965).

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Appointment is mandatory only

See

The Court finds that appointment of counsel is not warranted

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in this case.

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criminal appeals and are not especially complex.

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exceptional case that would warrant representation on federal

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habeas review.

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hearing is required under 28 U.S.C. § 2254(e).

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do not rely upon extra-record evidence and a factual basis exists in

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the record to determine the claims.

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merits of the petition the Court determines that further fact

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finding is required, the Court will decide whether to hold an

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evidentiary hearing or whether the facts can be gathered by way of

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mechanisms short of an evidentiary hearing, such as supplementation

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of the record with sworn declarations from the pertinent witnesses.

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See Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000).

Petitioner's claims are typical claims that arise in
This is not an

There also is no indication that an evidentiary

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Petitioner's claims

If during its review of the

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Accordingly, Petitioner's motion for appointment of counsel is

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DENIED.

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the Court on its own motion find an evidentiary hearing necessary

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following consideration of the merits of Petitioner's claims.

This denial is without prejudice to reconsideration should

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This Order terminates Docket no. 5.

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IT IS SO ORDERED.

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Dated: 5/24/2011
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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WILLIE E LATIMORE,

Case Number: CV11-00538 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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VINCE CULLEN et al,
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Defendant.
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United States District Court
For the Northern District of California

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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 May 24, 2011, 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.

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Willie E. Latimore G37684
San Quentin State Prison
San Quentin, CA 94974

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Dated: May 24, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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