Reed v. Gilbert

Filing 20

ORDER denying Petitioner's 19 Second Motion to Appoint Counsel; granting Petitioner's 18 Motion for Extension of Time to File Response to Respondent's Answer. Petitioner's response due 5/14/2018. Respondent's 15 Answer is RE-NOTED for 5/18/2018. Signed by Hon. James P. Donohue. **3 PAGE(S), PRINT ALL** (Roosevelt Reed, Prisoner ID: 962757) (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ROOSEVELT REED,
Petitioner,

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ORDER DENYING SECOND MOTION
FOR APPOINTMENT OF COUNSEL
AND GRANTING EXTENSION OF TIME
TO FILE A RESPONSE

v.

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Case No. C17-1859-RAJ-JPD

RON HAYNES,
Respondent.

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This is a federal habeas action filed pursuant to 28 U.S.C. § 2254. This matter comes

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before the Court at the present time on petitioner’s second motion for appointment of counsel

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and on his motion for an extension of time to file a response to respondent’s answer to

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petitioner’s federal habeas petition. The Court, having reviewed petitioner’s motions, and the

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balance of the record, hereby finds and ORDERS as follows:

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(1)

Petitioner’s second motion for appointment of counsel (Dkt. 19) is DENIED. As

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petitioner was previously advised, there is no right to have counsel appointed in cases brought

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under 28 U.S.C. § 2254 unless an evidentiary hearing is required. See Terravona v. Kincheloe,

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852 F.2d 424, 429 (9th Cir. 1988); Brown v. Vasquez, 952 F.2d 1164, 1168 (9th Cir. 1992); and,

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ORDER DENYING SECOND MOTION FOR
APPOINTMENT OF COUNSEL AND
GRANTING EXTENSION OF TIME - 1

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Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts.

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However, the Court may exercise its discretion to appoint counsel for a financially eligible

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individual where the "interests of justice so require." 18 U.S.C. § 3006A.

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A review of the materials before the Court at this time, including petitioner’s petition and

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respondent’s answer thereto, suggests that an evidentiary hearing will not be necessary to resolve

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petitioner’s claims. In addition, petitioner fails once again to demonstrate that the interests of

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justice are best served by appointment of counsel. Petitioner asserts that he requires an attorney

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and an investigator to interview a witness at Harborview Medical Center whom his trial attorney

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should have called as a witness on petitioner’s behalf at trial. Petitioner maintains that the

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information gleaned from such an interview would help him prove his ineffective assistance of

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counsel claim(s).

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The Court first notes that the two ineffective assistance of counsel claims presented in

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petitioner’s federal habeas petition relate to the manner in which petitioner’s trial counsel

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handled jury instruction issues. It is unclear how a witness interview would assist petitioner in

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pursuing either of those claims. Moreover, this Court’s review of petitioner’s federal habeas

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petition “is limited to the record that was before the state court that adjudicated the claim on the

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merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Thus, even if petitioner were able to

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obtain additional evidentiary support for his federal habeas claims at this point, such evidence

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would be outside the scope of this Court’s review. In sum, petitioner has not persuaded this

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Court that appointment of counsel is warranted at this time. Counsel will be appointed, as

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required, should the Court later determine that an evidentiary hearing is necessary.

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ORDER DENYING SECOND MOTION FOR
APPOINTMENT OF COUNSEL AND
GRANTING EXTENSION OF TIME - 2

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(2)

Petitioner’s unopposed motion for a 60-day extension of time to file a response to

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respondent’s answer (Dkt. 18) is GRANTED. Petitioner’s response was originally due not later

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than March 12, 2018. Petitioner is granted an extension of time until May 14, 2018 to file any

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response to respondent’s answer. Respondent’s answer (Dkt. 15) is RE-NOTED on the Court’s

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calendar for consideration on May 18, 2018.

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(3)

The Clerk shall direct copies of this Order to petitioner, to counsel for respondent,

and to the Honorable Richard A. Jones.
DATED this 22nd day of March, 2018.

A
JAMES P. DONOHUE
United States Magistrate Judge

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ORDER DENYING SECOND MOTION FOR
APPOINTMENT OF COUNSEL AND
GRANTING EXTENSION OF TIME - 3