United States District Court, N.D. California
ORDER DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL AND DIRECTING HIM TO FILE NEW HABEAS ACTION
YVONNE GONZALEZ ROGERS, District Judge.
On January 22, 2014, Petitioner Robin Gillen Starr, a prisoner at Salinas Valley State Prison ("SVSP"), filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 on behalf of himself and other prisoners. Also on that same date, the Clerk of the Court sent Petitioner a notice directing him to pay the filing fee or to file a completed in forma pauperis ("IFP") application. At that time, the Court could not conduct an initial review of this matter because Petitioner had not either paid the filing fee or completed an IFP application. See 28 U.S.C. § 1915(a) (a party is permitted to file a civil action in federal court without prepayment of fees or security if he makes affidavit that he is unable to pay such fees or give security therefor).
On February 3, 2014, Petitioner filed a motion leave to proceed IFP; however, he did not file a prisoner trust account statement showing transactions for the last six months or a Certificate of Funds that was signed by an authorized officer at the prison. Dkt. 10. Instead, the record indicated that Petitioner submitted a Certificate of Funds; however, he signed it - posing as an authorized officer at SVSP. Id. at 5.
On February 25, 2014, Petitioner filed his prisoner trust account statement in support of his IFP application. Dkt. 15.
On February 27, 2014, the Clerk sent Petitioner a notice directing him to pay the filing fee or to file a proper Certificate of Funds. The Clerk provided Petitioner with another copy of the correct IFP application form, along with a return envelope, instructions, and a notification that the case would be dismissed if he failed to pay the fee or file the requisite document within twenty-eight days. All the aforementioned documents were mailed to Petitioner at SVSP. The Court has previously noted that the Clerk's February 27, 2014 notice was not returned as undeliverable; therefore, the Court assumed that Petitioner received that notice relating to filing a proper Certificate of Funds, which was due on March 27, 2014. Dkt. 45 at 2.
The March 27, 2014 deadline passed, and Petitioner did not file a proper Certificate of Funds.
Out of an abundance of caution, on April 23, 2014, the Clerk attempted to send Petitioner a second notice directing him to pay the filing fee or to file a proper Certificate of Funds. The Clerk sent the same forms mentioned above to Petitioner at SVSP.
On April 28, 2014, which was almost a month after the March 27, 2014 deadline listed on the Clerk's February 27, 2014 Notice, Petitioner submitted a seven-page document that was docketed as a "Statement, " to which he attached another Certificate of Funds. Dkt. 28 at 3. However, the Court has determined that this filing was still improper because, again, Petitioner signed it, posing as an authorized officer at SVSP. Dkt. 45 at 2.
On May 21, 2014, the Clerk's April 23, 2014 notice was returned as undeliverable because Petitioner "refused" it. Dkt. 29.
In an Order dated July 25, 2014, the Court issued an Order dismissing all other Petitioners' actions except for Petitioner Starr's action. Dkt. 39 at 5. The Court further noted that, in light of Petitioner Starr's inability to file a timely and proper Certificate of Funds as well as his acts of refusing mail, it was in the interests of justice and judicial efficiency to establish whether Petitioner Starr intended to continue to prosecute this action. Id. at 4. The aforementioned Order was then mailed to Petitioner at SVSP.
On August 6, 2014, the Court's July 25, 2014 Order was returned as undeliverable because Petitioner "refused" it. Dkt. 42.
In an Order dated August 29, 2014, the Court determined that because Petitioner did not receive its July 25, 2014 Order, he essentially did not have any notice of the Court's intention to dismiss this action, as required by the Ninth Circuit. Dkt. 45 at 3 (citing Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987). In any event, the Court dismissed this action based on IFP deficiency because Petitioner had not submitted a timely and proper Certificate of Funds. Id. at 3. Again, this Court notes that Petitioner has had a previous action dismissed for similar reasons. See Starr v. Reisig, Case No. CIV S-11-3038 GGH P (E.D. Cal. Mar. 23, 2012) (dismissed for IFP deficiency after being given three opportunities to do so).
Since this action was closed Petitioner has filed a host letters as well as a motion for appointment of counsel (Dkt. 55). Petitioner has also filed letters in a separate action filed by his father, Robin S. Hampton. See Dkts. 16, 17, 20, 22 in Hampton v. Brown, Case No. 14-1901 CRB (PR).
In his motion for appointment of counsel, Petitioner claims that he needs the Court to appoint an attorney for him because he does not have sufficient funds to hire an attorney on his own. Dkt. 55 at 1. As an initial matter, Court notes that Petitioner has not established his indigency because his IFP application was deficient, which was the reason for the dismissal of this action. The Sixth Amendment's right to counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). The Court may, however, 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); Knaubert, 791 F.2d at 728. Here, Petitioner has not established his indigency to show that he ...