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Michael Ray Chavez v. John Haviland

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 22, 2011

MICHAEL RAY CHAVEZ, PETITIONER,
v.
JOHN HAVILAND, RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER

On July 24, 2009, Petitioner Michael Ray Chavez, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Pet'r's Pet., ECF No.

1. On November 13, 2009, Respondent filed an answer to the petition, see Resp't's Answer, ECF No. 14, to which Petitioner filed a traverse on February 1, 2010. See Pet'r's Traverse, ECF No. 19.

On September 10, 2010, findings and recommendations were issued, recommending that Petitioner's petition be denied. See Findings & Recommendations, ECF No. 21. Any objections to the findings and recommendations were originally due on or before October 1, 2010. Petitioner did not file his motion for an extension of time to file objections to the findings and recommendations until October 26, 2010. See Pet'r's Mot., Oct. 26, 2010, ECF No. 22. This was Petitioner's first of four motions for an extension of time.

On October 28, 2010, Petitioner's untimely motion for an extension of time was granted, based on Petitioner's allegations that access to certain legal documents and the law library was limited. Petitioner had until November 27, 2010, to file objections to the findings and recommendations. The order granting Petitioner's extension of time stated that no further extensions of time would be given absent verified and extraordinary good cause shown. Order 1, Oct. 28, 2010, ECF No. 23.

On November 22, 2010, Petitioner filed his second motion for an extension of time to file objections to the findings and recommendations. See Pet'r's Mot., Nov. 22, 2010, ECF No. 24. Petitioner claimed again that limited access to the law library prevented him from filing objections. See id. at 2.

On December 1, 2010, Petitioner's second extension of time was granted, provided, however, no further extensions of time would be granted on the grounds raised in Petitioner's last two motions for extension of time. See Order, Dec. 1, 2010, ECF No. 25.

On December 27, 2010, Petitioner filed his third motion for an extension of time to file objections to the findings and recommendations. See Pet'r's Mot., Dec. 27, 2010, ECF No. 26. Petitioner claimed that the third request was based "on different grounds than the two previous extensions granted to him." Id. Petitioner asserted that he was "finally released from Administrative Segregation just a few days ago and [was] now housed again with the General Population . . . ." Id. Petitioner requested an extension of time to "obtain[] professional legal counsel to represent him." Id.

On January 6, 2011, Petitioner's third motion for an extension of time was granted. See Order, Jan. 6, 2011, ECF No. 27. Petitioner was to hire new counsel or file objections to the findings and recommendations on or before February 5, 2011. See id. at 2. Petitioner failed to file anything until February 11, 2010, when Petitioner filed a motion to appoint counsel. See Pet'r's Mot., Feb. 11, 2011, ECF No. 28.

Petitioner did not file his fourth motion for an extension of time to file objections to the

findings and recommendations until February 14, 2011. See Pet'r's Mot., Feb. 14, 2011, ECF No. 29. In this fourth motion for an extension of time, Petitioner claims his access to legal documents and the law library was limited. See id. Petitioner also alleges he "does not understand the ways of the courts nor law nor does he understand the procedure or process of them. Petitioner is seeking help and relief from the courts due to his mental problems and lack of concentration and understanding." Id. at 2-3.

First, Petitioner's request for appointment of counsel is denied. As stated in the January 6, 2011, order, the Sixth Amendment right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). A district court, however, 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 district court's discretion. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965).

Appointment of counsel is not warranted in this case. Petitioner's claims are typical claims arising in a habeas petition and are not especially complex. This is not an exceptional case warranting representation on federal habeas review. Petitioner's request for appointment of counsel is denied.

Second, Petitioner's fourth request for an extension of time to file objections to the findings and recommendations is denied. Petitioner had over five months to hire counsel or to file objections, since the findings and recommendations were issued on September 10, 2009. Two out of four of Petitioner's motions for extension of time were untimely, as he admits, and his ability to file four motions for extensions of time belie Petitioner's claim that "he does not understand the ways of the courts nor law nor . . . procedure or process of them." Pet'r's Mot., Feb. 14, 2011, at 2-3. Petitioner does not need extensive law library access or legal counsel to file objections because Petitioner could have used arguments from his direct appeal to file objections to the findings and recommendations. Petitioner can only address issues in his objections that are exhausted in the lower state courts, Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted), and appellate counsel already addressed these issues on direct appeal. Petitioner's fourth request for an extension of time to file objections to the findings and recommendations is denied.

IT IS HEREBY ORDERED that:

1. Petitioner's February 11, 2011, request to appoint counsel is DENIED; and

2. Petitioner's February 14, 2011, request for an extension of time is DENIED.

20110222

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