Smith v. Swarthout

Filing 38

ORDER by Judge Lucy H. Koh denying as moot 35 Motion for Extension of Time to File Traverse; granting 36 Motion to Withdraw as Attorney; and granting 37 Stipulation to Extend Time to File Traverse (lhklc3, COURT STAFF) (Filed on 1/13/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DINO LOREN SMITH,
Petitioner,

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ORDER GRANTING WITHDRAWAL
OF COUNSEL AND STIPULATION TO
EXTEND TIME TO FILE TRAVERSE;
DENYING AS MOOT MOTION TO
EXTEND TIME

v.

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Case No. 09-CV-05602-LHK

GARY SWARTHOUT,

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Respondent.

Re: Dkt. No. 35, 36, 37

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Counsel for Petitioner Dino Loren Smith (“Petitioner”) has moved ex parte to withdraw as

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counsel. ECF No. 36. Petitioner also moves to extend the time for Petitioner to file a traverse to

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the answer to Petitioner’s petition for habeas corpus, ECF No. 35, and the parties additionally filed

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a stipulation to extend the time for Petitioner to file a traverse, ECF No. 37. Having considered

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the parties’ submissions, the relevant law, and the record in this case, the Court hereby GRANTS

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the motion to withdraw and stipulation to extend to time, and DENIES as moot Petitioner’s

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motion to extend time.

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I.

BACKGROUND
On November 25, 2009, Petitioner, represented by counsel, filed a petition for writ of
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Case No. 09-CV-05602-LHK
ORDER GRANTING WITHDRAWAL OF COUNSEL AND STIPULATION TO EXTEND TIME TO FILE
TRAVERSE; DENYING AS MOOT MOTION TO EXTEND TIME

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habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention at the California State

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Prison, Solano, in Vacaville, California. ECF No. 1. On May 15, 2013, Petitioner filed an

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amended petition for writ of habeas corpus. ECF No. 15. On August 13, 2015, this Court ordered

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Respondent Gary Swarthout (“Respondent”) to show cause why the amended petition should not

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be granted. ECF No. 27. This Court gave Respondent sixty days, or until October 12, 2015, to

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file an Answer. Id.

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On October 12, 2015, Respondent filed an application for extension of time to file a

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response. ECF No. 29. Respondent provided no explanation for the delay in requesting a sixty-

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day extension of time. See id. On October 13, 2015, pursuant to Civil Local Rule 6-3 and Habeas
Local Rule 2254-6, the Court granted Respondent the requested extended of time. ECF No. 30.

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United States District Court
Northern District of California

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Respondent filed an answer to the petition on December 11, 2015. ECF No. 31. The Court set a

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deadline of January 20, 2016 for Petitioner to file a traverse. Id.

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On January 5, 2016, Petitioner moved for a ninety-day extension of time to file the

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traverse, based on a forthcoming motion to withdraw by Petitioner’s pro bono counsel Geri Lynn

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Green (“Green”). ECF No. 35. On January 6, 2016, Green filed an ex parte motion to withdraw.

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ECF No. 36. In the motion and supporting declaration, Green represents that her “serious health

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concerns” require Green to work only limited hours and render her “unable to continue

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representing Petitioner.” Id. Green also represents that there are no other attorneys within her law

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office to take over the representation. Id. Green mailed to Petitioner the Respondent’s 3000-page

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answer and a letter explaining Green’s need to be relieved as counsel, as well as the financial

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declarations required for Petitioner to seek appointment of counsel. Id. Although Petitioner

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apparently received these documents, Green has not been able to speak to Petitioner about the

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motion to withdraw. Green represents that Respondent’s counsel has no objection to Green’s

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withdrawal or the requested extension of time. Id.

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On January 12, 2016, the parties filed a joint stipulation to extend the time for Petitioner to
file a traverse, until April 13, 2016. ECF No. 37. Green further explained that her health issues
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Case No. 09-CV-05602-LHK
ORDER GRANTING WITHDRAWAL OF COUNSEL AND STIPULATION TO EXTEND TIME TO FILE
TRAVERSE; DENYING AS MOOT MOTION TO EXTEND TIME

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have compounded since filing the motion to withdraw, and her current health condition renders

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her “unable to work.” See id.

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II.

LEGAL STANDARD
Pursuant to Civil Local Rule 11-5(b), counsel may not withdraw from an action until

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relieved by order of the Court after written notice has been given reasonably in advance to the

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client and to all other parties who have appeared in the case. Civ. L.R. 11-5(b). The decision to

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permit counsel to withdraw is within the sound discretion of the trial court. United States v.

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Carter, 560 F.3d 1107, 1113 (9th Cir. 2009). When addressing a motion to withdraw, the consent

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of the client is not dispositive. Robinson v. Delgado, No. CV 02-1538 NJV, 2010 WL 3259384, at
*2 (N.D. Cal. Aug.18, 2010). Rather, the court must consider factors such as the reason counsel

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United States District Court
Northern District of California

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seeks to withdraw, the possible prejudice caused to the litigants, and the extent to which

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withdrawal may delay resolution of the case. Id.
Additionally, Civil Local Rule 11-4(a)(1) mandates compliance with the standards of

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professional conduct required of members of the State Bar of California. Civ. L.R. 11-4(a)(1).

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The California Rules of Professional Conduct requires counsel to withdraw in cases where the

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counsel’s “mental or physical condition renders it unreasonably difficult to carry out the

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employment effectively.” Cal. Rules of Prof’l Conduct 3-700(B)(3). Additionally, the Rules of

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Professional Conduct permit counsel to withdraw in cases where the counsel’s “mental or physical

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condition renders it difficult for the member to carry out the employment effectively.” Id. 3-

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700(C)(4). In all cases, counsel must take “reasonable steps to avoid reasonably foreseeable

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prejudice to the rights of the client, including giving due notice to the client, allowing time for

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employment of other counsel, complying with Rule 3-700(D) [which addresses the disposition of

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client papers and property], and complying with applicable laws and rules.” Id. 3-700(A)(2).

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III.

DISCUSSION

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As a preliminary matter, the Civil Local Rules require that, unless otherwise ordered by the

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Court, a party may file an ex parte motion only if authorized by statute, Federal Rule, local rule, or

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Case No. 09-CV-05602-LHK
ORDER GRANTING WITHDRAWAL OF COUNSEL AND STIPULATION TO EXTEND TIME TO FILE
TRAVERSE; DENYING AS MOOT MOTION TO EXTEND TIME

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Standing Order. Civ. L.R. 7-10. Green’s motion to withdraw does not cite any authority

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permitting the filing of an ex parte motion. See ECF No. 36. However, Green represents, under

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penalty of perjury, that Green served opposing counsel with the motion to withdraw and opposing

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counsel does not object to the motion. See id. Accordingly, the Court will treat Green’s motion to

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withdraw as a request to file the motion ex parte. Based on Green’s representations that opposing

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counsel does not oppose the motion to withdraw, and the upcoming deadline for Petitioner to file a

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traverse, the Court GRANTS Green’s motion to file the motion to withdraw ex parte.

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With respect to the motion to withdraw, Green represents that her poor physical health
renders Green unable to continue representing Petitioner. See ECF Nos. 36, 37. This qualifies as
a permissible reason to withdraw. See Cal. Rules of Prof’l Conduct 3-700(B)(3), (C)(4).

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United States District Court
Northern District of California

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Additionally, Green has given notice to Petitioner, requested an extension of time to file the

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traverse, and provided Petitioner with Respondent’s answer and the financial paperwork necessary

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to request the appointment of new counsel. See ECF No. 36. The Court therefore concludes that

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Green has taken reasonable efforts to avoid prejudice to Petitioner, and GRANTS the motion to

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withdraw. To minimize the prejudice to Petitioner of Green’s withdrawal, the Court GRANTS the

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parties’ stipulation to extend the time to file a traverse to April 13, 2016. Consequently, the Court

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DENIES as moot Petitioner’s motion to extend time. See ECF No. 35.

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As a result of this motion, Petitioner must find new counsel or file the traverse pro se.

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Petitioner may seek appointment of counsel from the Court, but the Court notes that the Sixth

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

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

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to appoint counsel to represent a habeas petitioner if “the court determines that the interests of

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justice so require,” the courts have made appointment of counsel the exception rather than the rule.

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Appointment is mandatory only when the circumstances of a particular case indicate that

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appointed counsel is necessary to prevent due process violations. See Chaney v. Lewis, 801 F.2d

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1191, 1196 (9th Cir. 1986). Courts have limited appointment of counsel to: (1) capital cases; (2)

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Case No. 09-CV-05602-LHK
ORDER GRANTING WITHDRAWAL OF COUNSEL AND STIPULATION TO EXTEND TIME TO FILE
TRAVERSE; DENYING AS MOOT MOTION TO EXTEND TIME

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cases that turn on substantial and complex procedural, legal or mixed legal and factual questions;

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(3) cases involving uneducated or mentally or physically impaired petitioners; (4) cases likely to

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require the assistance of experts either in framing or in trying the claims; (5) cases in which

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petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See

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generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-

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86 (2d ed. 1994). Petitioner should address this standard for appointment of counsel should

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Petitioner seek appointment of counsel.
Under Civil Local Rule 11-5(b), when withdrawal by an attorney is not accompanied by

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simultaneous appearance of substitute counsel, the court may grant withdrawal subject to the
condition that papers continue to be served on counsel for forwarding purposes, unless and until

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United States District Court
Northern District of California

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the client appears by other counsel. See Civ. L.R. 11-5(b); Sun v. Rickenbacker Collection, No.

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10-CV-01055-LHK, 2011 WL 1344413, at *2 (N.D. Cal. Apr. 8, 2011) (requiring papers continue

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to be served on counsel for forwarding purposes for thirty days). Green represents that papers

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may continue to be served on the Law Office of Geri Lynn Green for forwarding purposes until

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Petitioner appears by other counsel or pro se. ECF No. 36. Accordingly, the Court grants

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withdrawal subject to the condition that papers continue to be served on the Law Office of Geri

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Lynn Green until new counsel appears or Petitioner indicates that Petitioner will proceed pro se.

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The Court also orders Green to serve this Order on Petitioner by certified mail and file proof of

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service with the Court by January 18, 2016.

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Green’s motion to withdraw subject to the

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condition that papers continue to be served on the Law Office of Geri Lynn Green for forwarding

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purposes until Petitioner appears by new counsel or pro se. The Court also GRANTS the parties’

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stipulation to extend the time for Petitioner to file the traverse to April 13, 2016, and accordingly

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DENIES as moot Petitioner’s motion to extend time. Green shall forward this order to Petitioner

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and shall file proof of service with the Court by January 18, 2016.

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Case No. 09-CV-05602-LHK
ORDER GRANTING WITHDRAWAL OF COUNSEL AND STIPULATION TO EXTEND TIME TO FILE
TRAVERSE; DENYING AS MOOT MOTION TO EXTEND TIME

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IT IS SO ORDERED.

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Dated: January 13, 2016
______________________________________
LUCY H. KOH
United States District Judge

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United States District Court
Northern District of California

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Case No. 09-CV-05602-LHK
ORDER GRANTING WITHDRAWAL OF COUNSEL AND STIPULATION TO EXTEND TIME TO FILE
TRAVERSE; DENYING AS MOOT MOTION TO EXTEND TIME