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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 15 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. / 16 17 Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. Petitioner also seeks leave to proceed in forma pauperis. He has also filed a motion 19 for appointment of counsel. 20 REQUEST FOR APPOINTMENT OF COUNSEL 21 The Sixth Amendment right to counsel does not apply in habeas corpus actions. See 22 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), 23 however, authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the 24 court determines that the interests of justice so require" and such person is financially unable to 25 obtain representation. The decision to appoint counsel is within the discretion of the district court. 26 See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. 27 Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). 28 Courts have made appointment of counsel the exception rather than the rule by limiting it to: 1 (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal and 2 factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4) 3 cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in 4 which petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See 5 generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383- 6 86 (2d ed. 1994). Appointment is mandatory only when the circumstances of a particular case 7 indicate that appointed counsel is necessary to prevent due process violations. See Chaney, 801 8 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). Under the foregoing standard, 9 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 10 appointment of counsel is DENIED. 11 12 13 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: 14 1. Petitioner's application to proceed in forma pauperis is GRANTED. 15 2. The Clerk of the Court shall serve a copy of this Order and the petition and all 16 attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State 17 of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address. 18 3. Respondent shall file with this Court and serve upon Petitioner, within one-hundred 19 and twenty (120) days of the issuance of this Order, an Answer conforming in all respects to Rule 5 20 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not 21 be issued. Respondent shall file with the Answer a copy of all portions of the relevant state records 22 that have been transcribed previously and that are relevant to a determination of the issues presented 23 by the petition. 24 4. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse with 25 the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. Should 26 Petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty (60) days 27 after the date Petitioner is served with Respondent's Answer. 28 2 1 5. Respondent may file with this Court and serve upon Petitioner, within sixty (60) days 2 of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an Answer, as set 3 forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If 4 Respondent files such a motion, Petitioner shall file with the Court and serve on Respondent an 5 opposition or statement of non-opposition to the motion within sixty (60) days of receipt of the 6 motion, and Respondent shall file with the Court and serve on Petitioner a reply within fifteen (15) 7 days of receipt of any opposition. 8 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 10 United States District Court For the Northern District of California 9 timely fashion. Petitioner must also serve on Respondent's counsel all communications with the 11 Court by mailing a true copy of the document to Respondent's counsel. 12 7. Extensions of time are not favored, though reasonable extensions will be granted. 13 Any motion for an extension of time must be filed no later than ten (10) days prior to the deadline 14 sought to be extended. 15 8. 16 IT IS SO ORDERED. 17 DATED: This Order terminates Docket nos. 3 and 5. 6/13/11 SAUNDRA BROWN ARMSTRONG United States District Judge 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 RAUL NUNO, Case Number: CV11-02446 SBA 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 MATTHEW CATE et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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. 13 14 15 16 17 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 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.11\Nuno2446.OSC-Atty-IFP.frm 4

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