Bale v. Holbrook

Filing 23

ORDER denying Petitioner's request that the Court instruct the State to respond to his argument on the merits as moot 19 ; Petitioner's motion for telephonic conference on this matter is denied 19 ; and Petitioner's motion for appointment of counsel is denied without prejudice 19 . Signed signed by Magistrate Judge J Richard Creatura.**4 PAGE(S), PRINT ALL**(John Bale, Prisoner ID: 845543)(CMG)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 JOHN MICHAEL BALE, 11 Petitioner, 12 ORDER DENYING MOTION v. 13 CASE NO. 3:17-CV-05188-RBL-JRC DONALD HOLBROOK, 14 Respondent. 15 The District Court has referred this petition for a writ of habeas corpus to United 16 17 18 States Magistrate Judge, J. Richard Creatura. The authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner 19 seeks relief from a state conviction, thus, the petition is filed pursuant to 28 U.S.C. § 20 2254. 21 Before the Court is petitioner’s motion that the Court require the State to address 22 his habeas petition on the merits; that he be allowed to appear at a hearing by telephone, 23 24 ORDER DENYING MOTION - 1 1 and that he be appointed counsel. Having reviewed the motions and the balance of the 2 record, the Court concludes that the motions should be denied. 3 4 DISCUSSION I. 5 Call to Address the Merits Petitioner invokes his right to reply to the State’s answer and appears to ask the 6 Court to instruct the State to respond to his arguments on the merits. Dkt. 19. In a 7 previous order, the Court declined to dismiss the petition and instructed the State to file a 8 9 10 11 12 supplemental answer addressing petitioner’s arguments. Dkt. 22. Because of this, the Court denies petitioner’s first request as moot. II. Motion for Telephonic Hearing Petitioner moves the Court to enter an order allowing him to appear by telephone 13 on July 30, 2017. Dkt. 19. Since the proposed date has already passed, the motion is 14 moot. Even if the motion was not moot, oral argument is not generally conducted on 15 motions submitted to the Court. Local Rule 7(b)(4). Occasionally, the Court may order 16 oral argument. Id. The Court has not ordered oral argument in this case and the parties do 17 18 not need to appear for a hearing or status conference. Further, petitioner does not demonstrate that a telephonic conference is necessary to discuss his petition. Petitioner’s 19 motion for a telephonic conference on this matter is denied. 20 III. Motion for Appointed Counsel 21 22 23 24 Petitioner requests that the Court appoint him counsel. Dkt. 19. There is no right to appointed counsel in cases brought under 28 U.S.C. § 2554 unless an evidentiary hearing is required or appointed counsel is necessary for the effective utilization of discovery ORDER DENYING MOTION - 2 1 procedures. See Pennsylvania v. Finney, 481 U.S. 551, 555 (1987); U.S. v. Duarte- 2 Higareda, 68 F.3d 369, 370 (9th Cir. 1995). The Court may also appoint counsel “at any 3 stage of the case if the interest of justice so require.” Weygandt v. Look, 718 F.2d 952, 4 5 954 (9th Cir. 1983) (citing Rule Governing Section 2254 Cases in the United States District Courts 8(c)). In deciding whether to appoint counsel, the Court “must evaluate 6 the likelihood of success on the merits as well as the ability of petitioner to articulate his 7 claims pro se in light of the complexity of the legal issues involved.” Id. 8 9 10 Petitioner has not yet requested that he be allowed to conduct discovery nor does the Court find good cause for granting him leave to do so at this stage in the proceedings. 11 See Rule Governing Section 2254 Cases in the United States District Courts 6(a). In 12 addition, the Court has not determined that an evidentiary hearing will be required, nor 13 does it appear that one is needed at this time. See Rule Governing Section 2254 Cases in 14 the United States District Courts 8(c). Petitioner has not shown that his particular 15 conditions of confinement are such that “the interests of justice” require appointment of 16 counsel. 17 18 Furthermore, petitioner effectively articulated his grounds for relief raised in the petition and the grounds are not factually or legally complex. Finally, it is difficult to 19 determine the likelihood of success on the merits without an answer on the merits from 20 respondent. The Court recently ordered respondent to file a supplemental Answer on the 21 22 23 24 merits. See Dkt. 22. Accordingly, petitioner’s motion for appointment of counsel is denied without prejudice. ORDER DENYING MOTION - 3 1 2 CONCLUSION 3 For the reasons stated, the Court hereby ORDERS as follows: 4 5 The Court denies petitioner’s request that the Court instruct the State to respond to his arguments on the merits as moot (Dkt. 19); 6 Petitioner’s motion for a telephonic conference on this matter is denied (Dkt. 19); 7 and, 8 Petitioner’s motion for appointment of counsel is denied without prejudice (Dkt. 9 10 11 19). Dated this 4th day of August, 2017. A 12 13 J. Richard Creatura United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING MOTION - 4

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