Witzig v. Shinn ( 2021 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Drew Witzig, No. CV 21-08042-PCT-JAT (JFM) 10 Petitioner, 11 v. ORDER 12 David Shinn, 13 Respondent. 14 15 On February 24, 2021, Petitioner Drew Witzig, who is confined in CoreCivic’s Red 16 Rock Correctional Center in Eloy, Arizona, filed a Request for Leave to File Oversized 17 Brief (Doc. 1), lodged a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 18 § 2254 (Doc. 2) and a Memorandum of Points and Authorities in Support of Writ of Habeas 19 Corpus (Docs. 2-1 and 2-2), and filed an Application to Proceed In Forma 20 Pauperis (Doc. 3) and a Request for the Appointment of Counsel (Doc. 5). The Court will 21 grant the Request for Leave to File, direct the Clerk of Court to file the § 2254 Petition and 22 the Memorandum, deny the Application to Proceed In Forma Pauperis, and deny without 23 prejudice the Request for the Appointment of Counsel. 24 I. Request for Leave to File 25 Petitioner seeks permission to “exceed the page limit of his Memorandum of Points 26 and Authorities” because he “has multiple issues and a lack of legal knowledge of how to 27 properly condense these issues.” The Court, in its discretion, will grant the Request for 28 1 Leave to File and will direct the Clerk of Court to file the lodged § 2254 Petition and 2 Memorandum. 3 II. Application to Proceed In Forma Pauperis 4 Local Rule of Civil Procedure 3.5(c) requires payment of the $5.00 statutory filing 5 fee if a petitioner has more than $25.00 in his inmate account. Petitioner’s Application to 6 Proceed indicates that he currently has more than $25.00 in his inmate account. 7 Accordingly, the Court will deny the Application to Proceed and will give Petitioner 30 8 days to pay the $5.00 filing fee. If Petitioner fails to pay the $5.00 filing fee within 30 9 days, the Petition for a Writ of Habeas Corpus will be dismissed. 10 III. Request for the Appointment of Counsel 11 “Indigent state prisoners applying for habeas corpus relief are not entitled to 12 appointed counsel unless the circumstances of a particular case indicate that appointed 13 counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 14 1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when “the 15 interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). 16 Petitioner has not made the necessary showing for appointment of counsel at this 17 time, and, therefore, his Request for the Appointment of Counsel will be denied without 18 prejudice. If, at a later date, the Court determines that an evidentiary hearing is required, 19 counsel will be appointed in accordance with Rule 8(c) of the Rules Governing Section 20 2254 Proceedings. 21 IV. Warnings 22 A. Address Changes 23 Petitioner must file and serve a notice of a change of address in accordance with 24 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 25 for other relief with a notice of change of address. Failure to comply may result in dismissal 26 of this action. 27 . . . . 28 . . . . 1 B. Possible Dismissal 2 If Petitioner fails to timely comply with every provision of this Order, including 3) these warnings, the Court may dismiss this action without further notice. See Ferdik v. 4| Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 5 | for failure to comply with any order of the Court). 6) ITIS ORDERED: 7 (1) Petitioner’s Request for Leave to File Oversized Brief (Doc. 1) is granted. 8 (2) The Clerk of Court must file the lodged Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (lodged at Doc. 2) and file separately the lodged 10 | Memorandum of Points and Authorities in Support of Writ of Habeas Corpus (lodged at 11 | Docs. 2-1 and 2-2). 12 (3) Petitioner’s Application to Proceed In Forma Pauperis (Doc. 3) is denied. 13 (4) Within 30 days of the date this Order is filed, Petitioner must pay the $5.00 14 | filing fee. 15 (5) If Petitioner fails to pay the $5.00 filing fee, the Clerk of Court must enter a 16| judgment of dismissal of this action without prejudice and without further notice to 17 | Petitioner and deny any pending unrelated motions as moot. 18 (6) Petitioner’s Request for Appointment of Counsel (Doc. 5) is denied without 19 | prejudice. 20 Dated this 12th day of March, 2021. 21 22 a 3 23 James A. Teilborg 24 Senior United States District Judge 25 26 27 28 -3-