Batalon v. Gonzales

Filing 14

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND EVIDENTIARY HEARING by Judge Yvonne Gonzalez Rogers denying 11 Motion to Appoint Counsel. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 2/29/2012)

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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 No. C 11-03810 YGR (PR) VICENTE BATALON, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL AND EVIDENTIARY HEARING Petitioner, vs. KIM HOLLAND, Acting Warden, et al. 15 Respondents. / 16 Petitioner has filed requests for the appointment of counsel and an evidentiary hearing in this 17 18 19 action. The Sixth Amendment right to counsel does not apply in habeas corpus actions. See 20 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), 21 however, authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the 22 court determines that the interests of justice so require" and such person is financially unable to 23 obtain representation. The decision to appoint counsel is within the discretion of the district court. 24 See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. 25 Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The courts have made appointment of counsel the 26 exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and 27 complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or 28 1 mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either 2 in framing or in trying the claims; (5) cases in which petitioner is in no position to investigate crucial 3 facts; and (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas 4 Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only 5 when the circumstances of a particular case indicate that appointed counsel is necessary to prevent 6 due process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 7 1965). 8 At this time, the Court is unable to determine whether the appointment of counsel is 9 mandated for Petitioner. Accordingly, the interests of justice do not require appointment of counsel, United States District Court For the Northern District of California 10 11 and Petitioner's request is DENIED. There also is no indication that an evidentiary hearing is required under 28 U.S.C. § 2254(e). 12 Petitioner's claims do not rely upon extra-record evidence and a factual basis exists in the record to 13 determine the claims. If during its review of the merits of the petition the Court determines that 14 further fact finding is required, the Court will decide whether to hold an evidentiary hearing or 15 whether the facts can be gathered by way of mechanisms short of an evidentiary hearing, such as 16 supplementation of the record with sworn declarations from the pertinent witnesses. See Downs v. 17 Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). 18 For these reasons, Petitioner's requests for the appointment of counsel and an evidentiary 19 hearing are DENIED. This denial is without prejudice to the Court's sua sponte reconsideration 20 should the Court find an evidentiary hearing necessary following consideration of the merits of 21 Petitioner's claims. 22 23 Kim Holland, the current acting warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 24 This Order terminates Docket no. 11. 25 IT IS SO ORDERED. 26 Dated: February 29, 2012 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 27 28 G:\PRO-SE\YGR\HC.11\Batalon3810.denyATTY&EVID.wpd 2

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