Nuno v. Cate et al

Filing 7

ORDER by Judge ARMSTRONG granting 3 Motion for Leave to Proceed in forma pauperis; denying 5 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 6/15/2011)

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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 11-02446 SBA (PR)

RAUL NUNO,

ORDER TO SHOW CAUSE; GRANTING
IN FORMA PAUPERIS STATUS; AND
DENYING PETITIONER'S MOTION
FOR APPOINTMENT OF COUNSEL

Petitioner,
v.
MATTHEW CATE, Warden, et al.,
Respondents.

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Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Petitioner also seeks leave to proceed in forma pauperis. He has also filed a motion

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for appointment of counsel.

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REQUEST FOR APPOINTMENT OF COUNSEL

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The Sixth Amendment right to counsel does not apply in habeas corpus actions. See

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B),

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however, authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the

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court determines that the interests of justice so require" and such person is financially unable to

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obtain representation. The decision to appoint counsel is within the discretion of the district court.

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See Chaney v. Lewis, 801 F.2d 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).

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Courts have made appointment of counsel the exception rather than the rule by limiting it to:

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(1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal and

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factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4)

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cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in

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which petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See

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generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-

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86 (2d ed. 1994). Appointment is mandatory only when the circumstances of a particular case

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indicate that appointed counsel is necessary to prevent due process violations. See Chaney, 801

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F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). Under the foregoing standard,

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the Court finds that appointment of counsel is not warranted. Thus, Petitioner's motion for

United States District Court
For the Northern District of California

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appointment of counsel is DENIED.

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ORDER TO SHOW CAUSE
It does not appear from the face of the petition that it is without merit. Good cause
appearing, the Court hereby issues the following orders:

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1.

Petitioner's application to proceed in forma pauperis is GRANTED.

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2.

The Clerk of the Court shall serve a copy of this Order and the petition and all

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attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State

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of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address.

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3.

Respondent shall file with this Court and serve upon Petitioner, within one-hundred

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and twenty (120) days of the issuance of this Order, an Answer conforming in all respects to Rule 5

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of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not

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be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records

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that have been transcribed previously and that are relevant to a determination of the issues presented

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by the petition.

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4.

If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with

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the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should

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Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days

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after the date Petitioner is served with Respondent's Answer.

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2

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Respondent may file with this Court and serve upon Petitioner, within sixty (60) days

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of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set

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forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If

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Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an

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opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the

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motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15)

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days of receipt of any opposition.

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6.

It is Petitioner's responsibility to prosecute this case. Petitioner must keep the Court

and Respondent informed of any change of address and must comply with the Court's orders in a

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United States District Court
For the Northern District of California

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timely fashion. Petitioner must also serve on Respondent's counsel all communications with the

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Court by mailing a true copy of the document to Respondent's counsel.

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7.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline

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sought to be extended.

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8.

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IT IS SO ORDERED.

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DATED:

This Order terminates Docket nos. 3 and 5.

6/13/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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RAUL NUNO,
Case Number: CV11-02446 SBA

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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MATTHEW CATE 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 June 15, 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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Raul Nuno F-86101
High Desert State Prison
P.O. Box 3030
Susanville, CA 96127
Dated: June 15, 2011
Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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