Fjerstad v. United States of America

Filing 54

ORDER denying petitioner's 52 Motion to Continue; and denying petitioner's 53 Motion to Appoint Counsel. A COPY OF THIS ORDER HAS BEEN MAILED TO PETITIONER TODAY. Signed by Hon. Mary Alice Theiler.(GB)

01 02 03 04 05 06 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) Petitioner, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) ____________________________________ ) CASE NO. C10-567-RSM-MAT (CR07-277-RSM)

07 MICHAEL J. FJERSTAD, 08 09 10 11 12 13

ORDER DENYING PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL AND TO CONTINUE

Petitioner Michael J. Fjerstad moves for appointment of counsel (Dkt. 53) and for a

14 continuance of this § 2255 action until the Ninth Circuit rules on his attempt to bring an 15 interlocutory appeal and this Court decides his motion for appointment of counsel (Dkt. 52). 16 For the reasons stated below, the Court DENIES both motions. 17 The district court has the discretion to appoint counsel in habeas matters. See Chaney

18 v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). The district court must appoint counsel in a 19 § 2255 action when an evidentiary hearing is required pursuant to Rule 8(c) of the Rules 20 Governing § 2255 Cases, United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995), and 21 when necessary for effective discovery pursuant to Rule 6(a). The district court also must 22 appoint counsel when the case is so complex that the lack of counsel would result in the denial ORDER DENYING PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL AND TO CONTINUE PAGE -1

01 of due process. See Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980) (citing Dillon v. 02 United States, 307 F.2d 445, 446­47 (9th Cir. 1962)). At this juncture, the Court has not 03 determined that an evidentiary hearing is required or that expansion of the record is necessary. 04 The Court finds that the complexities surrounding Mr. Fjerstad's allegations do not indicate that 05 the lack of counsel would result in the denial of due process. Because appointment of counsel 06 is not mandatory, the Court considers whether the interests of justice otherwise require the 07 appointment of counsel. See Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) 08 (quoting 18 U.S.C. § 3006A(a)(2)(B)). This determination is guided by an assessment of 09 petitioner's ability to articulate his claim, the complexity of the legal issues, and the likelihood 10 of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per 11 curiam). The Court finds that Mr. Fjerstad has articulated his claims well, the legal issues are 12 not inherently complex, and his likelihood of success on the merits is low. The Court therefore 13 DENIES plaintiff's motion for appointment of counsel (Dkt. 53) without prejudice to renewal 14 of this motion should the Court's further review of the record indicate that appointment of 15 counsel is either necessary or would serve the interests of justice. 16 In a previous minute order, the Court informed Mr. Fjerstad that it would not consider

17 any further extensions to the briefing deadlines unless made by separate motion and supported 18 by good cause. (Dkt. 49.) Mr. Fjerstad contends that his attempt to appeal an order directly to 19 the Ninth Circuit--after the district court denied issuance of a certificate of appealability to do 20 so (Dkt. 48, at 4)--along with his motion to appoint counsel constitute good cause. The Court 21 disagrees. The Court permitted Mr. Fjerstad months of additional time to file an optional 22 responsive brief (Dkts. 35, 46, 49) and therefore exercises its discretion not to delay ORDER DENYING PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL AND TO CONTINUE PAGE -2

01 consideration of the § 2255 motion any further. The Court DENIES Mr. Fjerstad's motion for 02 a continuance.1 (Dkt. 52.) 03 The Clerk is directed to send a copy of this Order to petitioner and to the Honorable

04 Ricardo S. Martinez. 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 1 Mr. Fjerstad has already missed the December 10, 2010, deadline to file a responsive brief and this matter was
ripe for consideration on December 17, 2010. (Dkt. 49.) If Mr. Fjerstad wishes to have the Court consider

DATED this 21st day of December, 2010.

A

Mary Alice Theiler United States Magistrate Judge

22 additional briefing, he must attach the proposed brief to a motion for leave to file a responsive brief. The Court
will not delay consideration of this matter while he files such a motion.

ORDER DENYING PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL AND TO CONTINUE PAGE -3