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Bustamante v. Garcia

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 17, 2009

JESUS BUSTAMANTE, PETITIONER,
v.
S. GARCIA, RESPONDENT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL [doc. #80]

Petitioner Jesus Bustamante filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting nine claims. After full briefing, the magistrate judge entered a Report and Recommendation ("Report") under 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3 that recommended the petition be denied. Petitioner timely objected to the Report with respect to his Claim 2 concerning three particular jury instructions; Claim 6 -- prosecutorial misconduct; Claim 7 -- ineffective assistance of trial counsel: and Claim 8 -- ineffective assistance of appellate counsel. But petitioner did not object to other portions of the Report.*fn1

The Court made a de novo determination of those portions of the report to which petitioner objected. 28 U.S.C. § 636(b)(1). After a thorough review of the entire record in this case and the parties' arguments, the Court adopted the Report in its entirety. Petitioner filed a notice of appeal on September 29, 2009. [docket # 77] In a footnote in the notice of appeal, petitioner stated that his "legal assistant is now preparing the certificate of appealability and it will be mailed forthwith as soon as completed." On October 15, 2009, petitioner requested and was granted an extension of time until December 9, 2009, in which to file his application for a certificate of appealability ("COA"). [doc. #79] On the date his application was due, petitioner instead filed a motion for appointment of counsel for proceedings in the district court and declaration of indigency. [doc. #80]

As a procedural matter, the sole remaining issue in the present case is whether a certificate of appealability should issue. The Court notes that petitioner has not been represented by counsel in this habeas action since 2005. [doc. #44] After counsel withdrew, petitioner has had the assistance of James W. Brammer, a fellow prisoner, in prosecuting this action. Petitioner states that he has been unable to locate Mr. Brammer.

The Sixth Amendment's right to counsel does not apply in habeas actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986). However, the district court may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require and such person is financially unable to obtain representation." 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987).

In the present case, the court does not find that the interests of justice would be served by the appointment of counsel. Specifically, petitioner's claims were adequately presented in the petition, traverse, supplemental traverse and objections to the Report and Recommendation.

Petitioner filed a notice of appeal on September 29, 2009. As noted above, the only activity remaining before the district court is petitioner's application for a COA. The Court is required to address whether a COA is warranted even when the petitioner does not specifically request its issuance. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997)("If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for a certificate.").

Because petitioner has not filed an application for a COA within the extended time provided, the court construes petitioner's notice of appeal as a request for a certificate of appealability. The Court will enter a separate order directed to the issuance of a COA. As a result of the procedural posture of the case, the interests of justice would not be served by the appointment of counsel

Accordingly, petitioner's motion for appointment of counsel is DENIED.

IT IS SO ORDERED.


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