The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
ORDER: REQUEST FOR APPOINTMENT OF (1) GRANTING PETITIONER'S COUNSEL [Doc. No. 26], and (2) DENYING WITHOUT PREJUDICE PETITIONER'S REQUESTS FOR [Doc. Nos. 10, 28.] AN EVIDENTIARY HEARING
Petitioner, a state prisoner proceeding pro se, is pursuing a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. On June 9, 2008, Respondents filed a motion to dismiss the petition. In response to the motion to dismiss, Petitioner requested appointment of counsel to represent him in this matter. [Doc. No. 26.] Petitioner further submitted two requests for an evidentiary hearing. [Doc. Nos. 10, 28.]
The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the court "determines that the interests of justice so require." 18 U.S.C.A. § 3006A(a)(2)(B) (West 2000); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).
The interests of justice require appointment of counsel when the court conducts an evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah, 18 F.3d at 573.
In the Ninth Circuit, "[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. A due process violation may occur in the absence of counsel if the issues involved are too complex for the petitioner. In addition, the appointment of counsel may be necessary if the petitioner has such limited education that he or she is incapable of presenting his or her claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970).
From the face of the petition, filed pro se, as well as the requests since filed by Petitioner, it appears that Petitioner does not have a good grasp of the legal issues in this case. Petitioner claims actual innocence and alleges that DNA evidence exists which may exonerate him and which has already led to the reversal of his co-defendant's conviction. (Doc. 9 at 15, 20; Doc. 20 at 1.) Respondent's motion to dismiss contends the Petition should be dismissed for failure to satisfy the one-year limitation period provided in 28 U.S.C. § 2244(d). (Doc. 19 at 9-13.) While the Petition acknowledges the one-year statute of limitation on petitions for federal habeas relief, Petitioner's motion for appointment of counsel shows that Petitioner has misconstrued Respondent's argument regarding the statute of limitations as a failure to exhaust state court remedies. (Doc. 19 at 26.) The Court therefore finds that the interests of justice require the appointment of counsel to properly brief an opposition to Respondents' motion on Petitioner's behalf.
Further, Petitioner has requested that the Court conduct an evidentiary hearing in order to develop facts in support of his claims. The Court will consider the factual basis of Petitioner's claims, and the development of these facts in the state court, only if Petitioner's claims survive Respondents' motion to dismiss. In so far as Petitioner seeks an evidentiary hearing to show that he has been diligent in pursuing his claims (Doc. 28 at 2), Petitioner's request is denied because the Petition itself does not allege any facts to support a claim that he has previously pursued the claims that he now brings.
Petitioner's request for appointment of counsel is hereby GRANTED. The Federal Defenders of San Diego, Inc. are hereby appointed to represent Petitioner. An opposition to Respondent's motion to dismiss shall be filed on or before August 18, 2008. Respondent shall file a reply to the opposition on or before August 29, 2008. The Reply shall address the impact, if any, that the California Supreme Court decision received by Petitioner in case number S154933 has on the applicable statute of limitations.
In addition, because an evidentiary hearing is neither required nor necessary at this time and Petitioner's requests are hereby DENIED WITHOUT PREJUDICE.
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