Ward v. McDowell

Filing 30

ORDER on Petitioner's Motion for an Evidentiary Hearing, Second Motion for Extension of Time to Object, and Second Motion for Appointment of Counsel. Petitioner's motion for appointment of counsel is denied without prejudice. The Court find s that Petitioner has not shown good cause for the requested extension and denies this third motion for an extension. Nevertheless, in the interests of justice, this Court will provide Petitioner one last opportunity to file his objections. Petitione r must file objections on or before September 11, 2017. Respondent must file any response to Petitioner's objections on or before September 25, 2017. Signed by Magistrate Judge Mitchell D. Dembin on 8/21/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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TROY D. WARD,

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Case No.: 16cv3055-LAB-MDD
Petitioner,

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ORDER ON PETITIONER’S MOTION
FOR AN EVIDENTIARY HEARING,
SECOND MOTION FOR EXTENSION
OF TIME TO OBJECT, and SECOND
MOTION FOR APPOINTMENT OF
COUNSEL

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[ECF No. 24]

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v.

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NEIL McDOWELL, Warden,

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Respondent.

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On July 5, 2017, Petitioner constructively filed this motion asking 1)

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appointment of counsel, and 2) for an additional 90 day extension of time to

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file objections to the pending Report and Recommendation. (ECF No. 28).

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A. Third Motion for Appointment of Counsel

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Petitioner’s motion for appointment of pro bono counsel is DENIED.

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

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corpus actions by state prisoners. See McClesky v. Zant, 499 U.S. 467,

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495(1991); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996) (noting that

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there currently exists no constitutional right to appointment of counsel in

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habeas proceedings); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).
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Courts may appoint counsel for financially-eligible habeas petitioners seeking

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relief pursuant to 28 U.S.C. § 2254 only where “the interests of justice so

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require.” 18 U.S.C. § 3006A(a)(2)(B); Chaney, 801 F.2d at 1196.

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The interests of justice require appointment of counsel when the court

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conducts an evidentiary hearing on the petition. Terrovona v. Kincheloe, 912

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F.2d 1176, 1177 (9th Cir. 1990); Knaubert v. Goldsmith, 791 F.2d 722, 728

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(9th Cir. 1986); Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994); Rule

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

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no evidentiary hearing is necessary. Id. When “the district court chooses to

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deny a motion for appointment of counsel, the court must review the record

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and render an independent legal conclusion.” Knaubert, 791 F.2d at 729.

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Moreover, when “the court declines to appoint counsel, it will have to inform

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itself of the relevant law. Therefore, the additional assistance provided by

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attorneys” is not required by the Constitution unless an evidentiary hearing

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is required. Id.

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An evidentiary hearing has not been ordered in this case, and therefore

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the interests of justice do not require appointment of counsel. Petitioner has

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not shown that this Court should exercise its discretion to appoint counsel.

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This is not a death penalty case. Petitioner does not show that this case is

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particularly complex. Petitioner included standardized testing results in his

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third request, however he does not explain how these results render him

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significantly less capable of pursuing his action than similarly situated

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petitioners.

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Petitioner has not shown that appointment of counsel is required by the

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interests of justice, that appointment of counsel is necessary to prevent due

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process violations in this action, or that this Court should exercise its

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discretion for alternative reasons. Accordingly, Petitioner’s motion for
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appointment of counsel is DENIED without prejudice.

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B. Second Motion for Extension

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Petitioner’s objections to the Report and Recommendation were

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originally due June 14, 2017. (ECF No. 19 at 39 (setting deadline to file

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objections)). Petitioner’s first motion for an extension sought a 90 day

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extension, but provided no grounds for seeking an extension. (ECF No. 21).

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In the interests of justice, the Court granted Petitioner’s motion in part,

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granted a month-long extension, and ordered Petitioner to file his objections

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on or before July 12, 2017. (ECF No. 22). Petitioner’s second motion for an

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extension sought an additional 60 days. (ECF No. 24). Petitioner was given

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an additional two weeks in order to file his objections. (ECF No. 25).

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In this third motion for an extension, Petitioner request an additional

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90 days. (ECF No. 28). In support, Petitioner does not provide any grounds

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except to note that he continues to wait for a reply back from his parole office.

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The Court finds that Petitioner has not shown good cause for the

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requested extension and DENIES this third motion for an extension.

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Nevertheless, in the interests of justice, this Court will provide Petitioner one

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last opportunity to file his objections. Petitioner must file objections on or

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before September 11, 2017. Respondent must file any response to

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Petitioner’s objections on or before September 25, 2017.

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IT IS SO ORDERED.

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Dated: August 21, 2017

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