Decarolis v. Williams, et al.,

Filing 48

ORDER Denying Petitioner's 45 Third Motion to Appoint Counsel and Denying Petitioner's 47 Motion for Clarification. Respondents' 41 , 42 First and Second Motions to Extend Time to File an Answer to the Petition are both Granted nunc pro tunc. Signed by Judge Kent J. Dawson on 3/8/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PATRICK PHILIP DECAROLIS,

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Case No. 2:14-cv-01379-KJD-PAL
Petitioner,

ORDER

v.
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BRIAN WILLIAMS, et al.,
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Respondents.
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This habeas matter comes before the court on motions to extend time as well as

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petitioner Patrick Philip Decarolis’s third motion for appointment of counsel (ECF No.

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45).

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As the court has explained previously, there is no constitutional right to appointed

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counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551,

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555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to

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

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

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(9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the

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complexities of the case are such that denial of counsel would amount to a denial of due

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process, and where the petitioner is a person of such limited education as to be

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incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also

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Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition on file in this action

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appears sufficiently clear in presenting the issues that petitioner wishes to raise, and the

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legal issues do not appear to be overly complex. The court further notes that petitioner
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states that he seeks counsel in order that counsel procure a store surveillance
videotape; however, there is no evidence that a security video exists (see exh. 118 to
respondents’ motion to dismiss, ECF No. 21). Petitioner has also filed a motion for
clarification, which appears to be a supplement to his motion for counsel and again
seeks appointed counsel in order to locate surveillance video. Petitioner’s third motion
for counsel and the motion for clarification are both denied.
IT IS THEREFORE ORDERED that petitioner’s third motion for appointment of
counsel (ECF No. 45) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for clarification (ECF No. 47)
is DENIED.
IT IS FURTHER ORDERED that respondents’ first and second motions to extend
time to file their answer to the petition (ECF Nos. 41 and 42) are both GRANTED nunc
pro tunc.

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DATED: 8 March 2017.

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KENT J. DAWSON
UNITED STATES DISTRICT JUDGE

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