Summers v. McDaniels et al

Filing 23

ORDER. IT IS HEREBY ORDERED that petitioner's 19 and 21 motions are DENIED. Signed by Judge Larry R. Hicks on 2/23/2011. (Copies have been distributed pursuant to the NEF - KO)

-RAM Summers v. McDaniels et al

Doc. 23

1 2 3 4 5 6 7 8 9 CHARLES ANTHONY SUMMERS, 10 11 vs ORDER 12 E.K. McDANIELS, et al, 13 14 Respondents. / Petitioner, Case No. 3:09-CV-000674-LRH-RAM UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

This is an action on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, brought

15 by Charles Summers appearing pro se. The matter has been fully litigated, with an answer and reply 16 brief on file. Petitioner moves the court to "ask a question" (ECF No. 19) and for appointment of 17 counsel (ECF No. 21). Both motions shall be denied. 18 In the motion to ask a question, petitioner asks why the Nevada Supreme Court reached a

19 particular factual conclusion in its opinion affirming his conviction. This is a question that this Court 20 cannot answer as it is outside the Court's knowledge and jurisdiction. The findings of the Nevada 21 Supreme Court are just that. Such a query must be directed to the court making the finding. 22 As for the motion for appointment of counsel, there is no constitutional right to appointed counsel

23 for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. 24 Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. 25 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. 26 Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be 27 appointed if the complexities of the case are such that denial of counsel would amount to a denial of due 28 process, and where the petitioner is a person of such limited education as to be incapable of fairly

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1 presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th 2 Cir. 1970). The claims in this case are not especially complex. Moreover, petitioner has already 3 presented his own defense to the motion to dismiss and a reply brief to the answer. The matter is ready 4 for review on its merits and appointment of counsel at this juncture is unnecessary and would be 5 pointless. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ___________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE DATED this 23rd day of February, 2011. IT IS THEREFORE ORDERED that petitioner's motions (ECF Nos. 19 and 21) are DENIED.