Shoemaker v. Gipson

Filing 6

ORDER by Judge ARMSTRONG denying 4 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 2/19/2013)

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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 15 No. C 12-4773 SBA (PR) JEDIDIAH AUSTIN SHOEMAKER, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Petitioner, v. Docket no. 4 CONNIE GIPSON, Respondent. / 16 17 Petitioner has filed a motion for appointment of counsel in this habeas action. The Sixth 18 Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 19 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), however, authorizes a district 20 court to appoint counsel to represent a habeas petitioner whenever "the court determines that the 21 interests of justice so require" and such person is financially unable to obtain representation. The 22 decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 23 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 24 (9th Cir. 1984). The courts have made appointment of counsel the exception rather than the rule by 25 limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or 26 mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired 27 petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the 28 claims; (5) cases in which petitioner is in no position to investigate crucial facts; and (6) factually 1 complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and 2 Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances 3 of a particular case indicate that appointed counsel is necessary to prevent due process violations. 4 See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). 5 At this time, the Court is unable to determine whether the appointment of counsel is 6 mandated for Petitioner. The Court thus finds that the interests of justice do not require appointment 7 of counsel at this juncture. Should the Court find that an evidentiary hearing is necessary following 8 consideration of the merits of Petitioner's claims, the Court may reconsider the request. 9 Accordingly, United States District Court For the Northern District of California 10 11 IT IS HEREBY ORDERED THAT Petitioner's motion for appointment of counsel is DENIED WITHOUT PREJUDICE. This Order terminates Docket no. 4. 12 13 IT IS SO ORDERED. Dated: 2/14/13 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.12\Shoemaker 12-4773 HC.Deny Atty.wpd 2 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JEDIDIAH AUSTIN SHOEMAKER, 5 Plaintiff, Case Number: CV12-04773 SBA CERTIFICATE OF SERVICE 6 7 8 v. CONNIE GIPSON et al, Defendant. / 9 United States District Court For the Northern District of California 10 11 12 13 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 February 19, 2013, 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. 14 15 17 Jedidiah Austin Shoemaker G-16403 California State Prison - Folsom P.O. Box 950 Folsom, CA 95763 18 Dated: February 19, 2013 16 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.12\Shoemaker 12-4773 HC.Deny Atty.wpd 3

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