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DeGarcia v. United States

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 3, 2007

LAURENCE PONCE DEGARCIA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING (1) MOTION TO PROCEED IN FORMA (2) MOTION FOR PAUPERIS [DOC. No. 38], AND [DOC. No. 39]

APPOINTMENT OF COUNSEL

Pending before the Court are Petitioner's motions to proceed in forma pauperis ("IFP"), and for appointment of counsel. For the reasons outlined below, the Court DENIES as moot the IFP motion, and DENIES the motion for appointment of counsel.

I. MOTION TO PROCEED IFP

Petitioner has filed this matter under 28 U.S.C. § 2255. Filing fees are not required for petitioners seeking relief under section 2255. See Rule 3, Rules Governing Section 2255 Proceedings for the Unites States District Courts, advisory committee notes. Because Petitioner is not required to pay a filing fee, the Court DENIES his motion to proceed IFP as moot.

II. MOTION FOR APPOINTMENT OF COUNSEL

The Court may appoint counsel for financially eligible persons seeking habeas relief if "the interests of justice so require." 28 U.S.C. § 3006A (a)(2)(B). "In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); see also Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). Additionally, appointed counsel is mandated when (1) necessary for effective discovery, or (2) an evidentiary hearing may occur. Weygandt, 718 F.2d at 954.

Petitioner's motion for appointment of counsel consists of a three-sentence letter that simply requests counsel. Petitioner has failed to demonstrate that counsel should be appointed in this case. Accordingly, the Court DENIES WITHOUT PREJUDICE Petitioner's request for appointment of counsel.

III. CONCLUSION

In light of the foregoing, the Court DENIES as moot Petitioner's motion for leave to proceed IFP [Doc. No. 38], and DENIES WITHOUT PREJUDICE the motion for appointment of counsel [Doc. No. 39].

IT IS SO ORDERED.

20071203

© 1992-2007 VersusLaw Inc.



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