Cortez v. Lewis

Filing 5

ORDER Denying 4 Motion for Hearing; Denying 2 Motion for Leave to Proceed in forma pauperis; Denying 3 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)

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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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GABRIEL RUDY CORTEZ,
Petitioner,

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vs.

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GREG D. LEWIS, Warden,
Respondent.

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No. C 12-03819 EJD (PR)
ORDER DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS;
DIRECTING PETITIONER TO PAY
FILING FEE; DENYING MOTION
FOR APPOINTMENT OF
COUNSEL AND MOTION FOR
EVIDENTIARY HEARING
(Docket Nos. 2, 3 & 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. 2.) 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 $23.67 and the average monthly balance in his account

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was $113.38, 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. 3.)

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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.
Order Denying IFP; Denying Other Motions
G:\PRO-SE\SJ.EJD\HC.12\03819Cortez_deny-ifp.wpd

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Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). An

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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’s motion for an evidentiary hearing, (Docket No. 4), is DENIED as

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premature. The Court will sua sponte consider whether an evidentiary hearing is

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appropriate after an initial review of the petition.

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For the Northern District of California

United States District Court

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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, 3 and 4.

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DATED:

10/5/2012

EDWARD J. DAVILA
United States District Judge

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Order Denying IFP; Denying Other Motions
G:\PRO-SE\SJ.EJD\HC.12\03819Cortez_deny-ifp.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

GABRIEL RUDY CORTEZ,

Case Number: CV12-03819 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
GREG LEWIS, Warden,
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.

Gabriel Rudy Cortez J-76501
Pelican Bay State Prison
P. O. Box 7500
Crescent City, Ca 95532
Dated:

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