Poole v. Dumanis et al

Filing 28

ORDER: (1) Denying 22 Motion for Clarification; (2) Denying 20 Motion for Appointment of Counsel without prejudice; and (3) Extending Time to File Third Amended Petition. This action remains Dismissed without prejudice and with leave to amend. If he wishes to proceed with this matter, the Petitioner must file a Third Amended Petition no later than July 1, 2015, which is complete in and of itself and is on a court-approved petition form. Signed by Judge Barry Ted Moskowitz on 5/20/2015. (All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN L. POOLE II, 12 Petitioner, 13 14 15 (1) DENYING MOTION FOR CLARIFICATION; v. (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE; and, BONNIE DUMANIS, et al., 16 17 Civil No. 14cv3044-BTM (MDD) ORDER: Respondents. (3) EXTENDING TIME TO FILE THIRD AMENDED PETITION 18 19 On December 23, 2014, Petitioner, a state prisoner proceeding pro se, filed a 20 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a request 21 to proceed in forma pauperis. (ECF Nos. 1-2.) On February 9, 2015, the Court denied 22 the application to proceed in forma pauperis, and dismissed the Petition without 23 prejudice for failure to allege exhaustion of state judicial remedies. (ECF No. 5.) 24 On February 20, 2015, Petitioner filed a First Amended Petition and a Motion to 25 Proceed in Forma Pauperis. (ECF Nos. 6-7.) On March 17, 2015, the Court granted 26 Petitioner’s Motion to proceed in forma pauperis, but dismissed the First Amended 27 Petition without prejudice because he had once again failed to allege exhaustion of state 28 court remedies. (ECF No. 18.) -1- 14cv3044 1 On March 23, 2015, Petitioner filed a Motion for Appointment of Counsel. (ECF 2 No. 20.) On April 24, 2015, he filed a Second Amended Petition, which alleged 3 exhaustion of state court remedies but failed to list any claims, referring instead to the 4 claims presented in his previous petitions. (ECF No. 23.) On May 7, 2015, the Court 5 dismissed the Second Amended Petition without prejudice on the basis that it was not 6 complete in and of itself and not on a court-approved form. (ECF No. 25.) Petitioner 7 was sent an amended petition form, and was instructed that if he wished to proceed with 8 this matter he was required, on or before June 1, 2015, to file a Third Amended Petition 9 which was complete in and of itself and on a court-approved form. (Id. at 2.) 10 After that Order of dismissal was filed, the Court received a brief in support of the 11 Second Amended Petition, which appears to have crossed in the mail with the Order of 12 dismissal. (ECF No. 26.) Because the Second Amended Petition has been dismissed 13 without prejudice and with leave to amend, the brief filed in support thereof, which does 14 not cure the defects of pleading of the Second Amended Petition, is rendered moot. 15 Petitioner has also filed a Motion for Clarification in which he indicates that he 16 wishes to clarify that he has exhausted his state court remedies, and requests this Court 17 to copy and mail to Petitioner several documents which, although unclear, were either 18 supposed to have been attached to the Motion but were not, or have been filed in the 19 District Court for the Western District of Oklahoma, or which Petitioner intends to file 20 in that court. (ECF No. 22.) The Motion for Clarification is DENIED, as Petitioner has 21 already alleged that he has exhausted his state court remedies, and because there is 22 insufficient information to identify which documents Petitioner requests this Court to 23 copy for him. (See ECF No. 22 at 4.) 24 Additionally, Petitioner’s Motion for appointment of counsel is DENIED without 25 prejudice as premature. The Sixth Amendment right to counsel does not extend to 26 federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 27 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 28 791 F.2d 722, 728 (9th Cir. 1986). Financially eligible habeas petitioners seeking relief -2- 14cv3044 1 pursuant to 28 U.S.C. § 2254 may obtain representation whenever the court “determines 2 that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. 3 Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 4 (9th Cir. 1984). The interests of justice require appointment of counsel when the court 5 conducts an evidentiary hearing on the petition or utilizes the discovery process. 6 Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Rule 8(c), 28 U.S.C. foll. 7 § 2254; Rule 6(a), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary 8 where no evidentiary hearing or discovery is necessary. Terrovona, 912 F.2d at 1177; 9 Knaubert, 791 F.2d at 728; see Chaney, 801 F.2d at 1196 (“Indigent state prisoners 10 applying for habeas relief are not entitled to appointed counsel unless the circumstances 11 of a particular case indicate that appointed counsel is necessary to prevent due process 12 violations.”) 13 It is premature at this point in the case to determine whether the “interests of 14 justice” warrant the appointment of counsel. The Motion for appointment of counsel is 15 therefore DENIED without prejudice to Petitioner to renew after he has filed his Third 16 Amended Petition. CONCLUSION 17 18 Based on the foregoing, Petitioner’s Motion for Clarification [ECF No. 22] is 19 DENIED, his Motion for appointment of counsel [ECF No. 20] is DENIED without 20 prejudice, and this action remains DISMISSED without prejudice and with leave to 21 amend. The Court EXTENDS the deadline for Petitioner to file the Third Amended 22 Petition. If he wishes to proceed with this matter, he must file a Third Amended Petition 23 no later than July 1, 2015, which is complete in and of itself and is on a court-approved 24 petition form. 25 26 27 28 IT IS SO ORDERED. DATED: May 20, 2015 BARRY TED MOSKOWITZ, Chief Judge United States District Court -3- 14cv3044

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