(HC) Frank v. Warden, USP Atwater ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY LEE FRANK, Case No. 1:21-cv-00568-HBK 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL 13 v. (Doc. No. 7) 14 WARDEN, USP ATWATER, 15 Respondent. 16 17 Before the court is petitioner’s motion to appoint counsel. (Doc. No. 7). Petitioner, a federal 18 prisoner, has pending a pro se petition for writ of habeas corpus filed under 28 U.S.C. § 2241. 19 (Doc. No. 1). On April 8, 2021, the court directed respondent to file a response to the petition. 20 (Doc. No. 5). Respondent’s response is not yet due. (See Doc. No. 5 at ¶ 1, directing response 21 within sixty days). In his motion, petitioner requests the court to appoint counsel to represent him 22 because he has limited access to the law library and jailhouse lawyers, and he submits the issues in 23 his case are complex. (Id. at 1). 24 There is no automatic, constitutional right to counsel in federal habeas proceedings. See 25 Coleman v. Thompson, 501 U.S. 722, 752 (1991); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 26 1958). The Criminal Justice Act, 18 U.S.C. § 3006A, however, authorizes this court to appoint 27 counsel for a financially eligible person who seeks relief under § 2241 when the “court determines 28 that the interests of justice so require.” Id. at § 3006A(a)(2)(B); see also Chaney v. Lewis, 801 F.2d 1 1191, 1196 (9th Cir. 1986). Moreover, the Rules Governing Section 2254 Cases in the United 2 | States District Courts require the court to appoint counsel: (1) when the court has authorized 3 | discovery upon a showing of good cause and appointment of counsel is necessary for effective 4 | discovery; or (2) when the court has determined that an evidentiary hearing is warranted. □□□ at Rs. 5 || 6(a) and &(c). 6 Here, petitioner was able to file his habeas petition without the aid of counsel, and the court 7 | finds that the claims raised therein do not appear to be complex. Further, the court does not find 8 | the circumstances of this case indicate that appointed counsel is necessary to prevent due process 9 | violations. Based upon the record, the court finds petitioner has not demonstrated that appointment 10 | of counsel is necessary at this stage of the proceedings. As noted, respondent’s response is not yet 11 | due. Provided petitioner meets the criteria set forth in 18 U.S.C. § 3006A, the court will consider 12 | appointing counsel to represent petitioner if the court later finds good cause to permit discovery or 13 | if the court decides that an evidentiary hearing is warranted in this matter. 14 Accordingly, it is ORDERED: 15 Petitioner’s motion for appointment of counsel (Doc. No. 7) is DENIED without 16 prejudice. 17 18 IT IS SO ORDERED. Dated: April 18, 2021 Mile. Wh. foareh Zaskth 20 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28