Gonzalez v. Walker et al

Filing 37

ORDER by Judge Ronald M. Whyte Granting 30 Motion for Transcripts; Granting 31 Motion for Extension of Time to File Traverse; Denying 32 Motion to Appoint Counsel. (jg, COURT STAFF) (Filed on 12/19/2012)

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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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ARMANDO GONZALEZ,

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Petitioner,
vs.

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VIRGA, Warden,
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Respondent.
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No. C 08-2389 RMW (PR)
ORDER GRANTING REQUEST FOR
TRANSCRIPTS; GRANTING
EXTENSION OF TIME TO FILE
TRAVERSE; DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

(Docket Nos. 30, 31, 32.)

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Petitioner, a state prisoner proceeding pro se, filed an amended petition for a writ of

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habeas corpus under 28 U.S.C. § 2254 challenging a criminal judgment from Santa Clara

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County superior court. (Doc. No. 3.) The court issued an order to show cause why petitioner’s

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writ should not be granted. (Doc. No. 6.) On August 14, 2012, respondent filed an answer to

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petitioner’s amended petition for writ of habeas corpus. (Doc. No. 26.) Respondent also

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lodged exhibits in support of the answer to the petition for writ of habeas corpus. (Id.)

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Petitioner has filed three motions. First, Petitioner requests transcripts of the

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proceedings occurring on February 8, 2005 and April 15, 2005 in Santa Clara County Superior

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Court, Case No. CC250319. (Doc. No. 30.) Petitioner’s request is GRANTED. The court

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notes that the transcripts petitioner requests were included in the exhibits lodged by

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respondent. Respondent certified that he mailed a copy of the exhibits to petitioner on August
Order Granting Req. for Trans; Granting EOT to File Traverse; Denying Appt. of Counsel
G:\PRO-SE\SJ.Rmw\HC.08\Gonzalez389trav-eot_trans_atty.wpd

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14, 2012. (Doc. No. 26.) However, in order to expedite these proceedings, respondent is

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directed to provide an additional courtesy copy of the requested transcripts to petitioner.

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Petitioner also requests a copy of the pro se petition filed in Gonzalez v. Virga, No. C-

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10-4236 JW. That case was dismissed by the court because it was opened in error. The court

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directed that the petition be filed instead as an amended petition in the instant action as Docket

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Number 3. The clerk is instructed to send petitioner a one-time courtesy copy of the

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amended petition. (Doc. No. 3.)
Second, petitioner also requests an extension of time to file a traverse. (Doc. No. 31.)

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Petitioner’s request for an extension of time to file a traverse is GRANTED. Petitioner shall

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file and serve the traverse no later than thirty (30) days from the filing date of this order.

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For the Northern District of California

United States District Court

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Petitioner’s final request is for appointment of counsel. (Doc. No. 32.) The Sixth

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Amendment’s right to counsel does not apply in habeas actions. Knaubert v. Goldsmith, 791

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F.2d 722, 728 (9th Cir. 1986). Pursuant to statute, however, a district court is authorized to

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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.”

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See 18 U.S.C. § 3006A(a)(2)(B). Unless an evidentiary hearing is required, the decision to

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appoint counsel is within the discretion of the district court. See Knaubert, 791 F.2d at 728;

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Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). An evidentiary hearing does not appear

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necessary at this time, and there are no exceptional circumstances to warrant appointment of

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counsel. Petitioner’s claims were adequately presented in the petition. Consequently, the

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interests of justice do not require appointment of counsel in the instant case, and the request for

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appointment of counsel is hereby DENIED. Should the circumstances change materially at a

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later stage of the litigation, the Court will reconsider this decision sua sponte.

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This order terminates docket numbers 30, 31 and 32.

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DATED:
RONALD M. WHYTE
United States District Judge

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Order Granting Req. for Trans; Granting EOT to File Traverse; Denying Appt. of Counsel
G:\PRO-SE\SJ.Rmw\HC.08\Gonzalez389trav-eot_trans_atty.wpd
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ARMANDO R. GONZALEZ,

Case Number: CV08-02389 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
JAMES WALKER, ET AL. et al,
Defendant.

/

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 December 19, 2012, 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.

Armando R. Gonzalez V-74787
C4/206
High Desert State Prison
P.O. Box 3030
Susanville, CA 96127
Dated: December 19, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk