(HC) Harris v. Hill ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLLEEN ANN HARRIS, No. 2:18-cv-0359 KJM AC P 12 Petitioner, 13 v. ORDER 14 MOLLY HILL, WARDEN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks habeas relief 18 pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 3, 2021, attorney Charles Khoury, who is private counsel for petitioner, sent two 21 documents to the court via email: (1) an Ex Parte Motion Requesting Appointment of Counsel, 22 and (2) a [Proposed] Order that the Ex Parte Motion Requesting Appointment of Counsel With Its 23 Attached Exhibits Be Filed Under Seal. Two declarations in support of the motion accompanied 24 the emailed submission. For the reasons stated below, the motion, proposed order and supporting 25 documents will be disregarded. 26 The rules of this court provide that all motions must be electronically filed; email 27 submissions are not considered. See E.D. Cal. Local Rules 133, 134, 135. Local Rule 134(a) 28 specifically provides that “Emailing a document to the Clerk or to the Court shall not constitute 1 | ‘filing’ of the document.” The only document to be emailed to the court in relation to a motion is 2 || a Word version of any proposed order that has been filed in pdf format. Local Rule 137(b). 3 || There are specific procedures to be followed when seeking to file documents under seal, 4 | including financial information or confidential attorney-client information relevant to a request 5 || for relief. See Local Rule 141. Counsel has disregarded all of these rules. Accordingly, there is 6 || no properly filed motion for appointment of counsel before the court for consideration. 7 Furthermore, the request for appointment is substantively meritless. There is no right to 8 | appointment of counsel in non-capital habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 9 | 460 (9th Cir. 1996). The vast majority of non-capital federal habeas petitioners appear pro se 10 || while some, like petitioner here, have retained counsel or have secured the assistance of pro bono 11 | counsel. The Rules Governing Section 2254 Cases provide that the court may appoint counsel 12 || pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, if the interests of justice so require. See 13 || Rule 8(c), Fed. R. Governing § 2254 Cases;! 18 U.S.C. § 3006A(2)(B). It is the rare case in 14 | which the interests of justice support appointment. 15 This case is fully briefed and submitted for decision. There is nothing to be done on 16 || petitioner’s behalf at this time. The federal statute does not contemplate the retroactive 17 || appointment of counsel in order to cover unpaid attorney bills with public funds. And there has 18 || been no showing that this case would have qualified for appointment of counsel at an earlier 19 | stage. 20 Accordingly, the documents emailed to the court by petitioner’s counsel will be 21 | DISREGARDED. 22 || DATED: April 15, 2021 Ctlhter— 23 ALLISON CLAIRE 4 UNITED STATES MAGISTRATE JUDGE 25 %6 ' Appointment of counsel for an indigent inmate is required only where an evidentiary hearing has been ordered. Id. When such a hearing is ordered, this court generally appoints the Office of 27 || the Federal Defender or a member of the CJA Panel administered by the Federal Defender. Should the court determine upon substantive review of this case that a hearing is required, present 28 | counsel may bring a motion for appointment for that purpose.