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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ORDER GRANTING IN FORMA
PAUPERIS STATUS AND DENYING
MOTION FOR APPOINTMENT OF
COUNSEL

Petitioner,
v.
TIM VIRGA, Warden,
Respondent.

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No. C 11-04304 SBA (PR)

MARVIN HARRIS,

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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 requested

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appointment of counsel in this action.

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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). The courts have made appointment of counsel the

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exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and

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complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or

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mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either

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in framing or in trying the claims; (5) cases in which petitioner is in no position to investigate crucial

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facts; and (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas

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Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only

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when the circumstances of a particular case indicate that appointed counsel is necessary to prevent

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

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Cir. 1965), cert. denied, 382 U.S. 996 (1966).

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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

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For the Northern District of California

appointment of counsel is mandated for Petitioner. Accordingly, the interests of justice do not

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United States District Court

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without prejudice to the Court's sua sponte reconsideration should the Court find an evidentiary

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hearing necessary following consideration of the merits of Petitioner's claims.

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Petitioner's application to proceed in forma pauperis is GRANTED. The Court will review
Petitioner's habeas petition in a separate written Order.

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This Order terminates Docket nos. 5 and 8.

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IT IS SO ORDERED.

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Dated:

10/21/11
SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\SBA\HC.11\Harris4304.Atty-IFP.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF
CALIFORNIA

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MARVIN HARRIS,
Case Number: CV11-04304 SBA
Plaintiff,

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For the Northern District of California

United States District Court

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CERTIFICATE OF SERVICE
v.
T. VIRGA et al,
Defendant.

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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 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.

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Marvin Harris #D-99649
New Folsom State Prison
P.O. Box 29006
Represa, CA 95671
Dated: October 25, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\HC.11\Harris4304.Atty-IFP.wpd

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