Garcia v. McDowell

Filing 65

ORDER DENYING EMERGENCY APPLICATION FOR APPOINTMENT OF COUNSEL; GRANTING SECOND EXTENSION OF TIME TO FILE TRAVERSE re 64 Notice (Other) filed by Esequiel Garcia. Traverse due by 11/3/2020. Signed by Judge Beth Labson Freeman on 9/22/2020. (tshS, COURT STAFF) (Filed on 9/22/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ESEQUIEL GARCIA,

United States District Court
Northern District of California

Petitioner,
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v.
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RAYTHEL FISHER, Warden,

Case No. 16-05301 BLF (PR)
ORDER DENYING EMERGENCY
APPLICATION FOR
APPOINTMENT OF COUNSEL;
GRANTING SECOND EXTENSION
OF TIME TO FILE TRAVERSE

Respondent.
(Docket No. 64)

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On June 19, 2020, Respondent filed an answer. Dkt. No.

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56. Petitioner’s traverse is currently due no later than September 22, 2020. On September

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18, 2020, Petitioner filed an “emergency application for appointment of counsel due to

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covid-19.” Dkt. No. 64. Petitioner asserts that due to the current quarantine at the prison,

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he is unable to access the prison law library or have contact with his parents who are

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assisting him in this matter. Id.

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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 within

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the discretion of the district court. Id.; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.),

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cert. denied, 469 U.S. 838 (1984). An evidentiary hearing does not appear necessary at

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this time, and the current circumstances Petitioner faces due to covid-19 are not

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exceptional as prisoners across the country are facing similar circumstances. Accordingly,

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the motion is DENIED.

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However, Petitioner shows good cause to warrant another extension of time to file a

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traverse. Petitioner shall be granted an extension of forty-two (42) days, such that his

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traverse shall be filed no later than November 3, 2020. The matter will be deemed

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submitted on the date Petitioner’s traverse is due.

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United States District Court
Northern District of California

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This order terminates Docket No. 64.
IT IS SO ORDERED.
Dated: __September 22, 2020__

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Denying Appt. of Counsel; Granting 2nd EOT to File Trav.
P:\PRO-SE\BLF\HC.16\05301Garcia_eot-trav2&atty.docx

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