Robinson v. Frakes

Filing 30

ORDER denying 27 Motion to Appoint Counsel signed by Magistrate Judge Karen L Strombom.(MET) cc: Petitioner

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GREGORY S. ROBINSON,
Petitioner,

No. C11-5302 RJB/KLS

v.
ORDER DENYING SECOND MOTION
FOR THE APPOINTMENT OF COUNSEL

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SCOTT FRAKES,
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Respondent.
Before the Court is Petitioner’s second motion for the appointment of counsel in this

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habeas case. ECF No. 25. Petitioner bases this second motion on his claim that the issues he

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raises are of constitutional magnitude and because portions of his claim have been re-referred to

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this Court for consideration on the merits. He appears to equate the re-referral with a likelihood

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of success on the merits and states that he has made a prima facie showing that he was denied

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effective assistance of counsel. ECF No. 27.
This Court recommended the dismissal of Claim Seven (denial of trial transcripts and

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court records) and Claim Eight (ineffective assistance of appellate counsel) on the merits. It also

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recommended the dismissal of the remainder of Petitioner’s claims, except for a portion of claim

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five, as unexhausted and procedurally barred. ECF No. 22. The District Court adopted the

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Report and Recommendation in part, re-referring the matter to the undersigned for consideration

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of claim three and a portion of claim five on the merits and for a recommendation on the
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issuance of a certificate of appealability. ECF No. 25. The District Court further found that

ORDER DENYING MOTION FOR COUNSEL - 1

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Petitioner had provided no reasonable argument in support of holding an evidentiary hearing. Id.

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at 5.

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There is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254
unless an evidentiary hearing is required, because the action is civil, not criminal, in nature. See

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Terravona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988); Brown v. Vasquez, 952 F.2d 1164,
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1168 (9th Cir. 1992); and Rule 8(c) of the Rules Governing Section 2254 Cases in the United

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States District Courts. An evidentiary hearing has not been granted in this case and the claims in

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the petition are adequately set forth and articulated. Petitioner has not yet demonstrated that an

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evidentiary hearing is necessary or that he is entitled to one.
Accordingly, it is ORDERED:
(1)

Petitioner’s second motion for counsel (ECF No. 27) is DENIED.

(2)

The Clerk is directed to send copies of this Order to Petitioner.

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DATED this

6th day of December, 2011.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER DENYING MOTION FOR COUNSEL - 2