LaFlamme v. Hubbard

Filing 6

ORDER Denying 4 Motion for Leave to Proceed in forma pauperis; Denying 2 Motion to Appoint Counsel. Petitioner must pay the $5.00 filing fee within thirty (30) days of the date of this order or face dismissal of this action for failure to pay the filing fee. Signed by Judge Edward J. Davila on 10/5/2012. (ecg, COURT STAFF) (Filed on 10/9/2012) Modified text on 10/9/2012 (ecg, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DON LAFLAMME,
Petitioner,

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For the Northern District of California

United States District Court

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vs.

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SUE HUBBARD,
Respondent.

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No. C 12-03365 EJD (PR)
ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS;
DIRECTING PETITIONER TO PAY
FILING FEE; DENYING MOTION
FOR APPOINTMENT OF
COUNSEL
(Docket Nos. 2 & 4)

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Petitioner, a California inmate, seeks petition in pro se for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner has filed a motion for leave to

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proceed in forma pauperis. (Docket No. 4.) The motion is DENIED because

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Petitioner has not shown an adequate level of poverty as the average monthly

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deposit in his account was $8.33 and the average monthly balance in his account was

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$244.57, for the six-months preceding the filing of this petition.

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Petitioner has filed a motion for appointment of counsel. (Docket No. 2.)

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

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See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867

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(1986). Unless an evidentiary hearing is required, the decision to appoint counsel is

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within the discretion of the district court. See Knaubert, 791 F.2d at 728; Bashor v.

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Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). An
Order Denying IFPL Denying Appt. Of Counsel
G:\PRO-SE\SJ.EJD\HC.12\03365LaFlamme_deny-ifp.wpd

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evidentiary hearing does not appear necessary at this time, and there are no

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exceptional circumstances to warrant appointment of counsel. Accordingly,

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Petitioner’s motion is DENIED. This denial is without prejudice to the Court’s sua

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sponte reconsideration should the Court later find an evidentiary hearing necessary

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following consideration of the merits of Petitioner’s claims.

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Petitioner must pay the $5.00 filing fee within thirty (30) days of the date of
this order or face dismissal of this action for failure to pay the filing fee.
This order terminates Docket Nos. 2 and 4.

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DATED:

10/5/2012

EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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Order Denying IFPL Denying Appt. Of Counsel
G:\PRO-SE\SJ.EJD\HC.12\03365LaFlamme_deny-ifp.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

DON LAFLAMME,

Case Number: CV12-03365 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
SUE HUBBARD,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
10/9/2012
That on
, 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.

Don LaFlamme C-52818
Salinas Valley State Prison
P. O. Box 1050
Soledad, CA 93960
Dated:

10/9/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk