(HC) Mitchell v. Pfeiffer ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEE WALTER MITCHELL, Case No. 1:18-cv-01645-AWI-JDP 12 Petitioner, ORDER DENYING PETITIONER’S MOTIONS TO APPOINT COUNSEL 13 v. ECF Nos. 18, 19 14 CHRISTIAN PFEIFFER, ORDER GRANTING PETITIONER’S 15 Respondent. MOTION FOR EXTENSION OF TIME 16 ECF Nos. 20, 21 17 18 19 Petitioner Dee Walter Mitchell, a state prisoner without counsel, seeks a petition for a writ 20 of habeas corpus under 28 U.S.C. § 2254. Before the court are petitioner’s two motions for 21 appointment of counsel, ECF Nos. 18, 19, and two motions for extensions of time, ECF Nos. 20, 22 21. 23 Motions for Appointment of Counsel 24 Petitioner seeks an appointment of counsel, stating that he is indigent and unable to afford 25 counsel. ECF Nos. 18, 19. A petitioner in a habeas proceeding does not have an absolute right to 26 counsel. See Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958) (“The Sixth Amendment has 27 no application here . . . .”). 28 1 There are three specific circumstances in which appointment of counsel is required in 2 habeas proceedings. First, appointment of counsel is required for an indigent person seeking to 3 vacate or set aside a death sentence in post-conviction proceedings under 28 U.S.C §§ 2254 or 4 2255. See 18 U.S.C. § 3599(a)(2). Second, appointment of counsel may be required if an 5 evidentiary hearing is warranted. See R. Governing § 2254 Cases 8(c). Third, appointment of 6 counsel may be necessary for effective discovery. See id. at 6(a). None of these situations are 7 present here. 8 This court is further authorized to appoint counsel for an indigent petitioner in a habeas 9 corpus proceeding if the court determines that the interests of justice require the assistance of 10 counsel. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B). 11 However, “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to 12 appointed counsel unless the circumstances of a particular case indicate that appointed counsel is 13 necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. In assessing whether to 14 appoint counsel, the court evaluates the petitioner’s likelihood of success on the merits as well as 15 the ability of the petitioner to articulate his claims without counsel, considering the complexity of 16 the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 17 I cannot conclude at this point that counsel is necessary to prevent a due process violation. 18 The legal issues currently involved are not exceptionally complicated, petitioner is able to 19 articulate his claims, and petitioner has not demonstrated a likelihood of success on the merits. 20 Accordingly, I find that appointed counsel is not necessary to guard against a due process 21 violation and that the interests of justice do not require the appointment of counsel at this time. 22 Motions for Extension of Time 23 Petitioner seeks two thirty-day extensions of time to file his traverse. ECF Nos. 20, 21. 24 For good cause shown, petitioner’s motions for two thirty-day extensions of time to file his 25 traverse are granted. No further extensions will be granted absent extraordinary circumstances. 26 Order 27 1. Petitioner’s motions for appointment of counsel are denied without prejudice. 28 ECF No. 18, 19. 1 2. Petitioner’s motions for extensions of time are granted. ECF No. 20, 21. 2 3 IT IS SO ORDERED. : —N prssann — Dated: _ October 29, 2019 5 UNI STATE AGISTRATE JUDGE 6 7 8 No. 206 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28