Harris v. Virga

Filing 9

ORDER by Judge ARMSTRONG granting 5 Motion for Leave to Proceed in forma pauperis; denying 8 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 10/25/2011)

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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 11 For the Northern District of California United States District Court 10 12 13 14 15 ORDER GRANTING IN FORMA PAUPERIS STATUS AND DENYING MOTION FOR APPOINTMENT OF COUNSEL Petitioner, v. TIM VIRGA, Warden, Respondent. 16 17 No. C 11-04304 SBA (PR) MARVIN HARRIS, / 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 requested 19 appointment of counsel in this action. 20 The Sixth Amendment right to counsel does not apply in habeas corpus actions. See 21 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), 22 however, authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the 23 court determines that the interests of justice so require" and such person is financially unable to 24 obtain representation. The decision to appoint counsel is within the discretion of the district court. 25 See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. 26 Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The courts have made appointment of counsel the 27 exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and 28 complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or 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 7 Cir. 1965), cert. denied, 382 U.S. 996 (1966). 8 At this early stage of the proceedings the Court is unable to determine whether the require appointment of counsel at this time, and Petitioner's request is DENIED. This denial is 11 For the Northern District of California appointment of counsel is mandated for Petitioner. Accordingly, the interests of justice do not 10 United States District Court 9 without prejudice to the Court's sua sponte reconsideration should the Court find an evidentiary 12 hearing necessary following consideration of the merits of Petitioner's claims. 13 14 Petitioner's application to proceed in forma pauperis is GRANTED. The Court will review Petitioner's habeas petition in a separate written Order. 15 This Order terminates Docket nos. 5 and 8. 16 IT IS SO ORDERED. 17 Dated: 10/21/11 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.11\Harris4304.Atty-IFP.wpd 2 1 2 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 MARVIN HARRIS, Case Number: CV11-04304 SBA Plaintiff, 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 CERTIFICATE OF SERVICE v. T. VIRGA et al, Defendant. / 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 October 25, 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. 15 16 17 18 19 Marvin Harris #D-99649 New Folsom State Prison P.O. Box 29006 Represa, CA 95671 Dated: October 25, 2011 20 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.11\Harris4304.Atty-IFP.wpd 3

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