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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 12-4773 SBA (PR)

JEDIDIAH AUSTIN SHOEMAKER,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Petitioner,
v.

Docket no. 4

CONNIE GIPSON,
Respondent.

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Petitioner has filed a motion for appointment of counsel in this habeas action. The Sixth

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Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith,

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791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), however, authorizes a district

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court to appoint counsel to represent a habeas petitioner whenever "the court determines that the

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interests of justice so require" and such person is financially unable to obtain representation. The

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decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801

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F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234

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(9th Cir. 1984). The courts have made appointment of counsel the exception rather than the rule by

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limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or

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mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired

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petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the

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claims; (5) cases in which petitioner is in no position to investigate crucial facts; and (6) factually

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complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and

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Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances

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of a particular case indicate that appointed counsel is necessary to prevent due process violations.

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See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965).

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At this time, the Court is unable to determine whether the appointment of counsel is

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mandated for Petitioner. The Court thus finds that the interests of justice do not require appointment

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of counsel at this juncture. Should the Court find that an evidentiary hearing is necessary following

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consideration of the merits of Petitioner's claims, the Court may reconsider the request.

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Accordingly,

United States District Court
For the Northern District of California

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IT IS HEREBY ORDERED THAT Petitioner's motion for appointment of counsel is
DENIED WITHOUT PREJUDICE. This Order terminates Docket no. 4.

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IT IS SO ORDERED.
Dated:

2/14/13
SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\SBA\HC.12\Shoemaker 12-4773 HC.Deny Atty.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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JEDIDIAH AUSTIN SHOEMAKER,

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Plaintiff,

Case Number: CV12-04773 SBA
CERTIFICATE OF SERVICE
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v.
CONNIE GIPSON et al,
Defendant.

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United States District Court
For the Northern District of California

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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 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.

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Jedidiah Austin Shoemaker G-16403
California State Prison - Folsom
P.O. Box 950
Folsom, CA 95763

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Dated: February 19, 2013

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\HC.12\Shoemaker 12-4773 HC.Deny Atty.wpd

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