Patterson v. Gipson

Filing 13

ORDER by Judge Phyllis J. Hamilton denying 10 Motion to Appoint Counsel ; denying 11 Motion for Discovery; denying 12 Motion for Extension of Time to Answer (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 11/26/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JAMES P. PATTERSON,
Petitioner,

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vs.

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ORDER DENYING MOTION
TO APPOINT COUNSEL,
DENYING MOTION FOR
DISCOVERY AND DENYING
MOTION FOR EXTENSION

CONNIE GIPSON, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-1229 PJH (PR)

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Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §

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2254, and respondent filed an answer on August 8, 2012. Petitioner was provided a ninety

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day extension to file a traverse that is due on December 21, 2012. Petitioner has now

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requested the appointment of counsel, discovery and an additional ninety day extension to

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file a traverse.

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DISCUSSION
I.

Appointment of Counsel

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Petitioner has moved for appointment of counsel.

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The Sixth Amendment's right to counsel does not apply in habeas corpus actions.

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C.

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§ 3006A(a)(2)(B) authorizes appointment of counsel to represent a habeas petitioner

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whenever "the court determines that the interests of justice so require and such person is

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financially unable to obtain representation."

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Petitioner has presented his claims adequately, and they are not particularly

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complex. Moreover, an answer has already been filed and the petition is almost completely

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submitted. The interests of justice do not require appointment of counsel.

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II.

Discovery

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A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to

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discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997).

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However, Rule 6(a) of the Federal Rules Governing Section 2254 Cases, 28 U.S.C. foll. §

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2254, provides that a “judge may, for good cause, authorize a party to conduct discovery

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under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Good

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cause for discovery under Rule 6(a) is shown “‘where specific allegations before the court

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show reason to believe that the petitioner may, if the facts are fully developed, be able to

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demonstrate that he is ... entitled to relief ...’” Id. at 908–09 (quoting Harris v. Nelson, 394
U.S. 286, 300 (1969)); Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005).

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For the Northern District of California

United States District Court

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Petitioner states that his legal materials were taken and he needs the records from

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the prior state habeas proceedings and transcripts. Other than stating he needs these

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materials petitioner provides no specific arguments why these materials are required.

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Petitioner has already presented his claims and a response has been filed. In addition,

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petitioner states his legal materials were taken in December 2011, though petitioner filed

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the petition in this case on March 12, 2012. There is no explanation concerning how

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petitioner was able to file a petition without his legal materials, but they are required for a

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traverse, nor does petitioner explain why he has waited until now to request this discovery.

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Petitioner has failed to demonstrate good cause for this discovery and the motion is denied.

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III.

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Extension
Petitioner has requested another ninety day extension to file his traverse. Petitioner

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cites his lack of legal knowledge and the loss of his legal materials. As stated above,

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petitioner has waited nearly a year after his legal materials were taken to request discovery

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and after he was already provided a ninety day extension. The traverse is not due until

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December 21, 2012, so petitioner still has approximately one month to complete his

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traverse. The motion for an extension is denied.

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CONCLUSION
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1. The motion to appoint counsel (document number 10 on the docket) is DENIED;

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2. The motion for discovery (document number 11 on the docket) is DENIED; and

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3. The motion for an extension (document number 12 on the docket) is DENIED.

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IT IS SO ORDERED.

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Dated: November 26, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.12\Patterson1229.ord.wpd

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For the Northern District of California

United States District Court

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