Thomas v. Arnold

Filing 12

ORDER (1) Extending Deadline For Petitioner To File Traverse; (2) Directing Clerk Of Court To Provide A Second Copy Of Court's January 23, 2017 Order; And (3) Denying Petitioner's Request For Counsel (Dkt # 11 ): Traverse deadline is extended from 4/27/2017 to 5/11/2017. Signed by Magistrate Judge Nita L. Stormes on 4/11/2017. (All non-registered users served via U.S. Mail Service. Per Order, a copy of the 1/23/2017 Order (Dkt # 6 ) also was sent to Petitioner.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEVEN GARY THOMAS,

Case No.: 3:16-cv-02986-WQH-NLS
Petitioner,

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v.

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ORDER:
(1) EXTENDING DEADLINE FOR
PETITIONER TO FILE TRAVERSE;
(2) DIRECTING CLERK OF COURT
TO PROVIDE A SECOND COPY OF
COURT’S JANUARY 23, 2017
ORDER; AND
(3) DENYING PETITIONER’S
REQUEST FOR COUNSEL

ERIC ARNOLD, Warden,
Respondent.

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(Dkt. No. 11)

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I.

Petitioner’s Deadline to File a Traverse

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On April 5, 2017, Petitioner filed a letter stating he is aware that Respondent filed

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an Answer to the Petition. Petitioner states, however, that he has not received an “Order

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to Show Cause,” and thus has not received any direction from the Court regarding when

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his reply to Respondent’s Answer is due.

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The Court has not issued any Order to Show Cause. The Court has, however,

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previously issued an Order that set forth deadlines, including Petitioner’s deadline to

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reply to Respondent’s Answer. In particular, on January 23, 2017, the Court issued an
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3:16-cv-02986-WQH-NLS

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Order setting Respondent’s deadline to respond or move to dismiss the Petition by March

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27, 2017. (Dkt. No. 6.) That Order also set Petitioner’s deadline to file his response, if

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any, by April 27, 2017. (Id.) The docket reflects that Petitioner was served with the

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Court’s Order via U.S. Mail Service. However, because Petitioner apparently did not

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receive a copy of the Order, the Court will direct the Clerk of Court to provide another

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copy, and the Court will also provide a brief extension on Petitioner’s deadline to file his

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Traverse to the Answer.
Petitioner’s Request for Counsel

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II.

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In a single sentence in his letter, Petitioner also asks the Court to appoint counsel

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in this matter “given the complexity of the issue.” (Dkt. No. 6.)

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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. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). But

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financially eligible habeas petitioners may obtain counsel whenever the court “determines

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that the interests of justice so require.’” 18 U.S.C. § 3006A(a)(2)(B); Terrovona v.

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Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). The interests of justice require

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appointment of counsel when the court conducts an evidentiary hearing on the petition.

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Id. at 1177. When no evidentiary hearing is necessary, appointment of counsel is

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discretionary. Id. In the Ninth Circuit, indigent prisoners are not entitled to appointed

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counsel unless counsel is necessary to prevent due process violations. Chaney, 801 F.2d

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at 1196; Terrovona, 912 F.3d at 1181.

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At this point the issues do not appear so complex such that Petitioner cannot

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litigate them. Also, it is not evident at this time that an evidentiary hearing is necessary.

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Under these circumstances, a district court does not abuse its discretion in denying a state

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prisoner’s request for appointment of counsel.

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III.

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For the foregoing reasons, the Court ORDERS that:

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Conclusion

1. The Clerk of Court is directed to provide another copy of the Court’s
January 23, 2017 Order (Dkt. No. 6) along with this Order;
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2. If Petitioner elects to file a Traverse to matters raised in the Answer, his
Traverse deadline is extended from April 27, 2017 to May 11, 2017; and
3. Petitioner’s request for appointment of counsel is DENIED.
IT IS SO ORDERED.
Dated: April 11, 2017

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