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Flowers v. Foulk

United States District Court, Northern District of California

January 15, 2015

JOSEPH J. FLOWERS, Petitioner,
v.
F. FOULK, Warden, Respondent.

ORDER DENYING MOTION FOR "REHEARING" ON REQUEST TO APPOINT COUNSEL (DOCKET NO. 38)

CLAUDIA WILKEN, United States District Judge

On May 12, 2014, Petitioner filed a motion for appointment of counsel, which was denied in an Order dated June 3, 2014. Doc. no. 17.

Petitioner has now filed a motion for a "rehearing" on his request to appoint counsel on the grounds that he "is not in the least of positions in investigating actual witnesses wearabouts [sic] and the Department of Corrections has lost his property." Respondent has not yet filed his answer to the petition.

The Sixth Amendment right to counsel does not apply in habeas corpus actions. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A(a)(2)(B), however, authorizes a district court to 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. The decision to appoint counsel is within the discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). The courts have made appointment of counsel the exception rather than the rule by limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965).

In its June 3, 2014 Order, the Court stated:

The court finds that appointment of counsel is not warranted in this case. Petitioner's claims appear to be the typical claims that arise in criminal appeals and habeas petitions and are not especially complex. This does not appear to be an exceptional case that would warrant representation on federal habeas review. There also is no indication that an evidentiary hearing is required under 28 U.S.C. § 2254(e). If during its review of the merits of the petition the Court determines that further fact finding is required, the Court will decide whether to hold an evidentiary hearing or whether the facts can be gathered by way of mechanisms short of an evidentiary hearing, such as supplementation of the record with sworn declarations from the pertinent witnesses. Downs v. Hoyt, 232 F.3d 1081, 1041 (9th Cir. 2000) .

June 3, 2014 Order at 5.

For the same reasons, Petitioner's motion for a "rehearing" on his request to appoint counsel is denied.

This Order terminates Docket no. 38.

IT IS SO ORDERED.


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