Sanchez v. Bird ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JACINTO SANCHEZ, Case No. 22-cv-09106-HSG 8 Petitioner, ORDER GRANTING EXTENSION OF TIME TO FILE PETITION ON FORM; 9 v. DENYING REQUEST FOR APPOINTMENT OF COUNSEL; 10 L. BIRD, DENYING AS MOOT REQUEST FOR LEAVE TO PROCEED IN FORMA 11 Respondent. PAUPERIS 12 Re: Dkt. Nos. 1, 2 13 14 On December 27, 2022, the Court received from Petitioner and docketed (1) a motion for 15 appointment of counsel in a federal habeas case, Dkt. No. 2, and (2) a motion for leave to proceed 16 in forma pauperis, Dkt. No. 1. Because Petitioner sought appointment of counsel for a federal 17 habeas petition and he did not have a habeas action pending in this Court, the Court opened a new 18 habeas action. The Court sent Petitioner deficiency notices, informing him that the action was 19 deficient because he had not filed a habeas petition, Dkt. No. 4, and that his in forma pauperis 20 application was deficient because he did not submit the proper form, Dkt. No. 5. Petitioner was 21 instructed to remedy these deficiencies by January 24, 2023, or this action would be dismissed. 22 Dkt. Nos. 4, 5. Petitioner has since paid the filing fee, Dkt. No. 7, but has not yet filed a petition. 23 For the reasons set forth below, the Court DENIES Petitioner’s request for appointment of 24 counsel, Dkt. No. 1; DENIES as moot Petitioner’s request to proceed in forma pauperis, Dkt. No. 25 2; and sua sponte GRANTS Petitioner an extension of time to March 10, 2023, to file a habeas 26 petition on the proper form. 27 // 1 DISCUSSION 2 I. Request for Appointment of Counsel 3 Petitioner has requested appointment of counsel to assist him in preparing and filing a 4 federal habeas corpus petition. Dkt. No. 1. Petitioner states that he lacks the financial resources to 5 retain counsel. He argues that appointment of counsel is appropriate because the case involves 6 substantial and complex procedural, legal, or mixed legal and factual questions; he is a layman of 7 the law; this case requires professional and legal representation to present a proper motion for the 8 appellate court; a fully well prepared petition requires counsel; he is unable to understand English 9 and therefore cannot fully comprehend how to present his case; the case requires expert testimony 10 from crime scene experts, criminology experts, gun and ballistic experts, and DNA experts; the 11 case involves disputed facts; and Petitioner is innocent. 12 The Sixth Amendment’s right to counsel does not apply in habeas corpus actions. See 13 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) 14 authorizes a district court to appoint counsel to represent a habeas petitioner whenever “the court 15 determines that the interests of justice so require” and such person is financially unable to obtain 16 representation. The decision to appoint counsel is within the discretion of the district court. 17 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. 18 Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The courts have made appointment of counsel the 19 exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial 20 and complex procedural, legal or mixed legal and factual questions; (3) cases involving 21 uneducated or mentally or physically impaired petitioners; (4) cases likely to require the assistance 22 of experts either in framing or in trying the claims; (5) cases in which petitioner is in no position to 23 investigate crucial facts; and (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, 24 Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is 25 mandatory only when the circumstances of a particular case indicate that appointed counsel is 26 necessary to prevent due process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 27 F.2d 778, 782 (9th Cir. 1965). 1 demonstrate exceptional circumstances. For example, because Petitioner has not stated any 2 federal habeas claims, the Court cannot assess whether any such claims would be complex or 3 whether there are disputed facts. The Court DENIES Petitioner’s request for appointment of 4 counsel without prejudice to sua sponte appointing counsel should the circumstances so require. 5 Dkt. No. 1. 6 II. Granting Extension of Time to File Petition 7 This action cannot proceed without a petition that sets forth cognizable claims for federal 8 habeas relief. In the interest of justice, the Court sua sponte GRANTS Petitioner an extension of 9 time to March 10, 2023, to file a habeas petition on the proper form. If Petitioner fails to file a 10 petition within the time provided in this order, this action may be dismissed without further notice 11 to Petitioner for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See 12 Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 13 The Clerk shall send Petitioner two copies of Court’s habeas petition form. 14 CONCLUSION 15 For the reasons set forth below, the Court ORDERS as follows. 16 1. The Court DENIES Petitioner’s request for appointment of counsel without 17 prejudice to sua sponte appointing counsel should the circumstances so require. Dkt. No. 1. 18 2. The Court sua sponte GRANTS Petitioner an extension of time to March 10, 2023, 19 to file a habeas petition on the proper form. If Petitioner fails to file a petition within the time 20 provided in this order, this action may be dismissed without further notice to Petitioner for failure 21 to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 22 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). The Clerk shall send 23 Petitioner two copies of Court’s habeas petition form. 24 3. The Court DENIES as moot Petitioner’s request to proceed in forma pauperis. 25 Dkt. No. 2. Petitioner has paid the filing fee. Dkt. No. 7. 26 // 27 // 1 This order terminates Dkt. Nos. 1 and 2. 2 IT IS SO ORDERED. 3 Dated: 2/7/2023 aay cot S. GILLIAM, JR. □ 5 United States District Judge 6 7 8 9 10 11 a 12 13 14 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28