(HC) Godfrey v. Warden PBSP ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA MICHAEL GODFREY, Case No. 1:19-cv-01197-LJO-JDP 12 Petitioner, ORDER REQUIRING RESPONSE TO PETITION FOR WRIT OF HABEAS 13 v. CORPUS, SETTING BRIEFING SCHEDULE, AND DIRECTING SERVICE OF 14 WARDEN PBSP, DOCUMENTS 15 Respondent. ECF No. 1 16 ORDER DENYING PETITIONER’S MOTION TO APPOINT COUNSEL 17 ECF No. 2 18 19 20 Petitioner Joshua Michael Godfrey, a state prisoner without counsel, seeks a petition for a 21 writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The matter is before the court for 22 preliminary review. Under Rule 4 of the Rules Governing Section 2254 Cases, the court must 23 examine the habeas corpus petition and order a response to the petition unless it “plainly appears” 24 that the petitioner is not entitled to relief. It does not plainly appear that petitioner is not entitled 25 to relief. Therefore, we order the government to respond to the petition, set a briefing schedule, 26 and direct service of documents. 27 Second, petitioner moved this court for the appointment of counsel, stating that he lacks 28 legal education and cannot afford to hire counsel. ECF No. 2. A petitioner in a habeas 1 proceeding does not have an absolute right to counsel. See Anderson v. Heinze, 258 F.2d 479, 2 481 (9th Cir. 1958). 3 There are three specific circumstances in which appointment of counsel is required in 4 habeas proceedings. First, appointment of counsel is required for an indigent person seeking to 5 vacate or set aside a death sentence in post-conviction proceedings under 28 U.S.C §§ 2254 or 6 2255. See 18 U.S.C. § 3599(a)(2). Second, appointment of counsel may be required if an 7 evidentiary hearing is warranted. See Rules Governing § 2254 Cases 8(c). Third, appointment of 8 counsel may be necessary for effective discovery. See id. at 6(a). None of these situations are 9 present here. 10 This court is further authorized to appoint counsel for an indigent petitioner in a habeas 11 corpus proceeding if the court determines that the interests of justice require the assistance of 12 counsel. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B). 13 However, “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to 14 appointed counsel unless the circumstances of a particular case indicate that appointed counsel is 15 necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. In assessing whether to 16 appoint counsel, the court evaluates the petitioner’s likelihood of success on the merits as well as 17 the ability of the petitioner to articulate his claims without counsel, considering the complexity of 18 the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 19 We cannot conclude at this point that counsel is necessary to prevent a due process 20 violation. The legal issues currently involved are not exceptionally complicated, petitioner is able 21 to articulate his claims, and petitioner has not yet demonstrated a great likelihood of success on 22 the merits at this early stage in the case. Accordingly, we find that appointed counsel is not 23 necessary to guard against a due process violation and that the interests of justice do not require 24 the appointment of counsel at this time. 25 Order 26 1. Petitioner’s motion for the appointment of counsel is denied. ECF No. 2. 27 2. Within sixty days of the date of service of this order, respondent must file a 28 response to the petition. 1 3. A response may be one of the following: 2 A. An answer addressing the merits of the petition. Any argument by 3 respondent that petitioner has procedurally defaulted a claim must be raised 4 in the answer, which must also address the merits of petitioner’s claims. 5 B. A motion to dismiss the petition. 6 4. Within sixty days of the date of service of this order, respondent must file all 7 transcripts and other documents necessary for resolving the issues presented in the 8 petition. See Rules Governing Section 2254 Cases, Rule 5(c). 9 5. If respondent files an answer to the petition, petitioner may file a traverse within 10 thirty days of the date of service of respondent’s answer. If no traverse is filed 11 within thirty days, the petition and answer are deemed submitted. 12 6. If respondent moves to dismiss, petitioner must file an opposition or statement of 13 non-opposition within twenty-one days of the date of service of respondent’s 14 motion. Any reply to an opposition to the motion to dismiss must be filed within 15 seven days after the opposition is served. The motion to dismiss will be 16 considered submitted twenty-eight days after the service of the motion or when the 17 reply is filed, whichever comes first. See Local Rule 230(1). 18 7. Respondent must complete and return to the court within thirty days a form stating 19 whether respondent consents or declines to consent to the jurisdiction of a United 20 States Magistrate Judge under 28 U.S.C. 8 636(c)(1). 21 8. The clerk of the court is directed to serve a copy of this order on the state attorney 22 general or the attorney general’s representative. 23 IT IS SO ORDERED. 25 ( Waban Dated: _ January 28, 2020 26 UNI STATES MAGISTRATE JUDGE 27 28 1 2 No. 206. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28