Polina v. Montgomery et al

Filing 11

ORDER (1) Denying Petitioner's Motion For Appointment Of Counsel (Dkt # 9 ); And (2) Granting Respondent's Motion For Extension Of Time To File Answer (Dkt # 10 ): Answer due by 1/2/2017. Traverse due by 2/1/2017. Signed by Magistrate Judge Louisa S Porter on 11/1/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERONIMO POLINA,

Case No.: 16-cv-02133-WQH (DHB)
Petitioner,

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ORDER:

v.
W.L. MONTGOMERY, Warden,

(1) DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL (ECF NO. 9); AND

Respondent.

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(2) GRANTING RESPONDENT’S
MOTION FOR EXTENSION OF
TIME TO FILE ANSWER (ECF NO.
10)

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On October 24, 2016, Petitioner filed

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a Motion for Appointment of Counsel. (ECF No. 9.) On October 28, 2016, Respondent

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filed a Motion for Extension of Time to File Answer. (ECF No. 10.) For the following

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reasons, Petitioner’s Motion for Appointment of Counsel is DENIED WITHOUT

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PREJUDICE, and Respondent’s Motion for Extension of Time to File Answer is

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GRANTED.

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///
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I.

MOTION TO APPOINT COUNSEL (ECF NO. 9)

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The Sixth Amendment right to counsel does not extend to federal habeas corpus

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actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis,

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801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.

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1986). However, financially eligible habeas petitioners seeking relief pursuant to 28

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U.S.C. § 2254 may obtain representation whenever the court “determines that the interests

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of justice so require.” 18 U.S.C. § 3006A(a)(2)(B) (2014); Terrovona v. Kincheloe, 912

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F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

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The interests of justice require appointment of counsel when the court conducts an

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evidentiary hearing on the petition. Terrovona, 912 F.2d at 1181; Knaubert, 791 F.2d at

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728; Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when

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no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1181 (citing Bashor, 730 F.2d

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at 1234); Knaubert, 791 F.2d at 728. If the Court determines that an evidentiary hearing

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becomes necessary in the future, the Court will require appointment of counsel at that time.

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In the Ninth Circuit, “[i]ndigent state prisoners applying for habeas relief are not

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entitled to appointed counsel unless the circumstances of a particular case indicate that

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appointed counsel is necessary to prevent due process violations.” Chaney, 801 F.2d at

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1196 (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970)); Knaubert, 791 F.2d at

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728-29. The Ninth Circuit considers the clarity and coherence of a petitioner’s district

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court pleadings to determine the necessity of appointment of counsel; if clear and

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understandable, the court typically finds appointment of counsel unnecessary. See LaMere

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v. Risely, 827 F.2d 622, 626 (9th Cir. 1987). Further, the Eighth Circuit notes that “[w]here

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the issues involved can be properly resolved on the basis of the state court record, a district

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court does not abuse its discretion in denying a request for court-appointed counsel.”

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Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994); see Terrovona, 912 F.2d at 1181-82.

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At this stage of the proceedings, it does not appear that appointment of counsel is

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required to prevent a due process violation. There is no indication that the issues are too

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complex or that Petitioner is incapable of presenting his claims. Petitioner claims he needs
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assistance with the complexity of his case. However, Petitioner has not demonstrated facts

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which show that he has an insufficient grasp of his case or the legal issues involved, nor

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has he demonstrated an inadequate ability to articulate the factual basis of his claim.

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Indeed, Petitioner has been successful in getting a Petition on file and filing multiple

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motions to appoint counsel. Moreover, the Petition in this case was pleaded sufficiently to

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warrant this Court’s order directing Respondent to file an answer or other responsive

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pleading to the Petition. (See ECF No. 6.) Therefore, the Court finds that the interests of

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justice do not require the appointment of counsel at this time.

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Accordingly, Petitioner’s Motion for Appointment of Counsel is DENIED

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WITHOUT PREJUDICE.

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II.

MOTION FOR EXTENSION OF TIME TO FILE ANSWER (ECF NO. 10)

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Respondent requests a thirty (30) day extension of time to file an Answer due to

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counsel’s unavailability. Good cause appearing, the Court GRANTS the ex parte motion.

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Accordingly, the Court modifies the prior briefing schedule (ECF No. 6) as follows:

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1.

Respondent shall file and serve an answer to the Petition, and a memorandum

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of points and authorities in support of such answer, pursuant to Rule 5 of the Rules

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Governing § 2254 Cases no later than January 2, 2017. At the time the answer is filed,

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Respondent shall lodge with the Court all records bearing on the merits of Petitioner’s

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claims. The lodgments shall be accompanied by a notice of lodgment which shall be

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captioned “Notice of Lodgment in 28 U.S.C. § 2254 Habeas Corpus Case — To Be Sent

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to Clerk’s Office.” Respondent shall not combine separate pleadings, orders or other items

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into a combined lodgment entry. Each item shall be numbered separately and sequentially.

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2.

Petitioner may file a traverse to matters raised in the answer no later than

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February 1, 2017. Any traverse by Petitioner (a) shall state whether Petitioner admits or

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denies each allegation of fact contained in the answer; (b) shall be limited to facts or

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arguments responsive to matters raised in the answer; and (c) shall not raise new grounds

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for relief that were not asserted in the Petition. Grounds for relief withheld until the

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traverse will not be considered. No traverse shall exceed ten (10) pages in length absent
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advance leave of Court for good cause shown.

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3.

A request by a party for an extension of time within which to file any of the

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pleadings required by this Order should be made in advance of the due date of the pleading,

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and the Court will grant such a request only upon a showing of good cause. Any such

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request shall be accompanied by a declaration under penalty of perjury explaining why an

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extension of time is necessary.

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4.

Unless otherwise ordered by the Court, this case shall be deemed submitted

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on the day following the date Petitioner’s traverse is due.

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III.

CONCLUSION

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For the foregoing reasons, Petitioner’s Motion to Appoint Counsel is DENIED

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WITHOUT PREJUDICE (ECF No. 9), and Respondent’s Motion for Extension of Time

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to File Answer is GRANTED (ECF No. 10), as laid out above.

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IT IS SO ORDERED.
Dated: November 1, 2016
_________________________
LOUISA S PORTER
United States Magistrate Judge

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