Torres v. Sherman et al

Filing 16

ORDER (1) Denying 15 Ex Parte Motion for Appointment of Counsel to File Traverse to Respondent's Answer to Petition and (2) Granting 13 Application for a 30-Day Enlargement of Time to File Traverse to Respondent's Answer. Traverse by Petitioner due 1/10/2018. Signed by Magistrate Judge Bernard G. Skomal on 11/22/2017. (All non-registered users served via U.S. Mail Service)(rmc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LARRY LUIS TORRES, Case No.: 17CV978 MMA (BGS) Petitioner, 12 13 v. 14 ORDER: (1) DENYING EX PARTE MOTION FOR APPOINTMENT OF COUNSEL TO FILE TRAVERSE TO RESPONDENT’S ANSWER TO PETITION (2) GRANTING APPLICATION FOR A 30-DAY ENLARGEMENT OF TIME TO FILE TRAVERSE TO RESPONDENT’S ANSWER STUART SHERMAN, Warden, 15 Respondent. 16 17 18 19 20 [ECF Nos. 13, 15] 21 22 23 Petitioner Larry Luis Torres has filed an Ex Parte Motion for Appointment of 24 Counsel to File Traverse to Respondent’s Answer to Petition and an Ex Parte Application 25 for a 30-Day Enlargement of Time to File Traverse to Respondent’s Answer to the 26 Petitioner for Writ of Habeas Corpus. (ECF Nos. 13, 15.) Petitioner seek appointment of 27 counsel for purposes of filing a Traverse on his behalf. (Id. at 2.) He indicates that he 28 needs counsel to file the Traverse because he is awaiting transfer and expects to be 1 17CV978 MMA (BGS) 1 without his property until the requested December 10, 20171 deadline to file his Traverse. 2 (Id.) 3 The Sixth Amendment right to counsel does not extend to federal habeas corpus 4 actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. 5 Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 6 (9th Cir. 1986). In the Ninth Circuit, “[i]ndigent state prisoners applying for habeas 7 corpus relief are not entitled to appointed counsel unless the circumstances of a particular 8 case indicate that appointed counsel is necessary to prevent due process violations.” 9 Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. Although the Court has 10 “discretion to appoint counsel for indigents when it determines ‘that the interests of 11 justice so require.’” Chaney, 801 F.2d at 1196 (quoting 18 U.S.C. § 3006A(g)). 12 Here, the only basis put forward for appointment of counsel is Petitioner’s transfer 13 and the impact that may have on his ability to timely file his Traverse due to limitations 14 on his access to his legal materials. To the extent this could constitute a due process 15 violation, it is better remedied through an additional extension of time beyond when 16 Petitioner expects to regain access to his legal materials. 17 Accordingly, Petitioner’s request for appointment of counsel is DENIED and his 18 request for an extension of time to file his Traverse is GRANTED. Petitioner must file 19 his Traverse on or before January 10, 2018. 20 21 IT IS SO ORDERED. Dated: November 22, 2017 22 23 24 25 26 27 28 1 Petitioner’s Traverse is currently due on November 10, 2017. 2 17CV978 MMA (BGS)

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