Xavier v. Johnson

Filing 18

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL by Judge Edward J. Davila Denying 16 Motion to Appoint Counsel. (tshS, COURT STAFF) (Filed on 7/15/2021)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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 GARY R. XAVIER, Petitioner, 12 13 14 15 Case No. 20-06210 EJD (PR) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. RAYMOND JOHNSON, Warden, Respondent. 16 (Docket No. 17) 17 18 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254, challenging his state conviction. On May 6, 2021, the Court 20 set a briefing schedule on the cognizable claims, directing Respondent to file an answer or 21 dispositive motion within sixty days of the order. Dkt. No. 12. Respondent’s answer is 22 currently due no later than August 6, 2021. Petitioner has filed a motion for appointment 23 of counsel. Dkt. No. 16. 24 The Sixth Amendment’s right to counsel does not apply in habeas corpus actions. 25 See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 26 (1986). Unless an evidentiary hearing is required, the decision to appoint counsel is within 27 the discretion of the district court. Id.; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), 28 cert. denied, 469 U.S. 838 (1984). Here, an evidentiary hearing does not appear to be 1 necessary at this stage of the proceedings, and Petitioner’s circumstances are not so 2 exceptional to warrant appointment of counsel. Accordingly, Petitioner’s motion for 3 appointment of counsel is DENIED without prejudice to the Court’s sua sponte 4 reconsideration should an evidentiary hearing be necessary to review the merits of 5 Petitioner’s claims. 6 This order terminates Docket No. 17. 7 IT IS SO ORDERED. 8 Dated: __July 15, 2021_________ ________________________ EDWARD J. DAVILA United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order Denying Motion for Appointment of Counsel P:\PRO-SE\EJD\HC.20\06210Xavier_deny.atty.docx 26 27 28 2

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