Street v. Knipp

Filing 8

ORDER by Judge Claudia Wilken TO SHOW CAUSE; DENYING 7 REQUEST FOR APPOINTMENT OF COUNSEL; GRANTING 3 APPLICATION TO PROCEED IN FORMA PAUPERIS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 1/11/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 HOWARD STREET, Petitioner, 5 6 7 8 No. C 11-05126 CW (PR) ORDER TO SHOW CAUSE; DENYING REQUEST FOR APPOINTMENT OF COUNSEL; GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS v. W. KNIPP, Warden, (Docket nos. 3 & 7) Respondent. / 9 United States District Court For the Northern District of California 10 Petitioner, a state prisoner, has filed this petition for a 11 writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the 12 validity of his criminal conviction. 13 face of the petition that it is without merit. 14 Court will order a response to the petition, as set forth below. 15 Petitioner requests the appointment of counsel to represent It does not appear from the Accordingly, the 16 him in this action. The Sixth Amendment right to counsel does not 17 apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 18 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), 19 however, authorizes a district court to appoint counsel to 20 represent a habeas petitioner whenever "the court determines that 21 the interests of justice so require" and such person is financially 22 unable to obtain representation. 23 is within the discretion of the district court. 24 Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 25 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). 26 courts have made appointment of counsel the exception rather than 27 the rule by limiting it to: (1) capital cases; (2) cases that turn 28 on substantial and complex procedural, legal or mixed legal and The decision to appoint counsel See Chaney v. The factual questions; (3) cases involving uneducated or mentally or 1 physically impaired petitioners; (4) cases likely to require the 2 assistance of experts either in framing or in trying the claims; 3 (5) cases in which petitioner is in no position to investigate 4 crucial facts; and (6) factually complex cases. 5 Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure 6 § 12.3b at 383-86 (2d ed. 1994). 7 when the circumstances of a particular case indicate that appointed 8 counsel is necessary to prevent due process violations. 9 Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th United States District Court For the Northern District of California 10 11 See generally 1 J. Appointment is mandatory only See Cir. 1965). At this early stage of the proceedings the Court is unable to 12 determine whether the appointment of counsel is mandated for 13 Petitioner. 14 claims adequately in the petition, and no evidentiary hearing 15 appears necessary. 16 require appointment of counsel at this time, and Petitioner's 17 request is DENIED. 18 may reconsider on its own motion and appoint counsel if the Court 19 finds an evidentiary hearing is necessary following consideration 20 of the merits of Petitioner's claims. 21 22 The Court notes that Petitioner has presented his Accordingly, the interests of justice do not This denial is without prejudice. The Court In view of Petitioner's pauper status, the Court GRANTS the application to proceed in forma pauperis. 23 CONCLUSION 24 For the foregoing reasons, the Court orders as follows: 25 1. 26 DENIED. 27 2. 28 GRANTED. Petitioner's request for the appointment of counsel is (Docket no. 3.) Petitioner's application to proceed in forma pauperis is (Docket no. 7.) 2 1 3. The Clerk of the Court shall serve a copy of this Order 2 and the petition and all attachments thereto upon Respondent and 3 Respondent's attorney, the Attorney General of the State of 4 California. 5 Petitioner at his current address. 6 4. The Clerk shall also serve a copy of this Order on Respondent shall file with this Court and serve upon 7 Petitioner, within one-hundred twenty (120) days of the issuance of 8 this Order, an Answer conforming in all respects to Rule 5 of the 9 Rules Governing Section 2254 Cases, showing cause why a writ of United States District Court For the Northern District of California 10 habeas corpus should not be issued. 11 Answer a copy of all portions of the relevant state records that 12 have been transcribed previously and that are relevant to a 13 determination of the issues presented by the petition. 14 5. Respondent shall file with the If Petitioner wishes to respond to the Answer, he shall 15 do so by filing a Traverse with the Court and serving it on 16 Respondent within sixty (60) days of his receipt of the Answer. 17 Should Petitioner fail to do so, the petition will be deemed 18 submitted and ready for decision sixty (60) days after the date 19 Petitioner is served with Respondent's Answer. 20 6. Respondent may file with this Court and serve upon 21 Petitioner, within sixty (60) days of the issuance of this Order, a 22 motion to dismiss on procedural grounds in lieu of an Answer, as 23 set forth in the Advisory Committee Notes to Rule 4 of the Rules 24 Governing Section 2254 Cases. 25 Petitioner shall file with the Court and serve on Respondent an 26 opposition or statement of non-opposition to the motion within 27 sixty (60) days of receipt of the motion, and Respondent shall file If Respondent files such a motion, 28 3 1 with the Court and serve on Petitioner a reply within fifteen (15) 2 days of receipt of any opposition. 3 7. It is Petitioner's responsibility to prosecute this case. 4 Petitioner must keep the Court and Respondent informed of any 5 change of address and must comply with the Court's orders in a 6 timely fashion. 7 all communications with the Court by mailing a true copy of the 8 document to Respondent's counsel. 9 8. Petitioner must also serve on Respondent's counsel Extensions of time are not favored, though reasonable United States District Court For the Northern District of California 10 extensions will be granted. 11 must be filed no later than ten (10) days prior to the deadline 12 sought to be extended. Any motion for an extension of time 13 This Order terminates Docket nos. 3 and 7. 14 IT IS SO ORDERED. 15 Dated: 1/11/2012 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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