Smith v. Scillia et al

Filing 32

ORDER that petitioners motion for time 30 is GRANTED. Petitioner is granted to and including December 11, 2011, to file his reply to the answer. The motion for counsel 31 is DENIED. Signed by Judge Philip M. Pro on 11/8/11. (Copies have been distributed pursuant to the NEF - ECS)

1
2
3
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

4
5
6

BRECK SMITH,

7

Petitioner,

8

vs.

9

ANTHONY SCILLIA, et al.,

10

Respondents.

)
)
)
)
)
)
)
)
)

2:10-CV-01596-PMP-GWF
ORDER

11

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a

12

state prisoner, is proceeding pro se. On October 30, 2011, petitioner filed a motion for an extension

13

of time to file his reply to the answer to the petition (ECF No. 30) and a motion for appointment of

14

counsel (ECF No. 31).

15

The motion for counsel shall be denied. As the Court noted in denying a previous motion for

16

counsel, there is no constitutional right to appointed counsel for a federal habeas corpus proceeding.

17

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993).

18

The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th

19

Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert.

20

denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are

21

such that denial of counsel would amount to a denial of due process, and where the petitioner is a person

22

of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at

23

1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). Petitioner can make use of the law

24

library and the assistance of prison law clerks. He has been granted sufficient time to address the issues

25

and no counsel is warranted.

26

///

1

Good cause appearing, petitioner’s motion for time (ECF No. 30) is GRANTED. Petitioner is

2

granted to and including December 11, 2011, to file his reply to the answer. The motion for counsel

3

(ECF No. 31) is DENIED.

4
5

DATED: November 8, 2011.

6
7
8

PHILIP M. PRO
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2