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Fairbanks v. Covello

United States District Court, N.D. California

December 5, 2019

BYRON MCCORD FAIRBANKS, Petitioner,
v.
COVELLO, Respondent.

          ORDER TO SHOW CAUSE; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING MOTION FOR APPOINTMENT OF COUNSEL (DOCKET NOS. 3, 5)

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE

         Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction.[1] Petitioner has filed a motion for appointment of counsel, (Docket No. 3), and a motion for leave to proceed in forma pauperis, (Docket No. 5).

         BACKGROUND

         Petitioner was convicted by a jury in Contra Costa County Superior Court of voluntary manslaughter. (Pet. at 1-2.) Petitioner was sentenced to 25 years to life on August 25, 2017. (Id. at 1.)

         Petitioner appealed the matter to the state appellate and state high court, but without success. (Id. at 3.)

         Petitioner filed this federal habeas action on August 30, 2019.

         DISCUSSION

         A. Standard of Review

         This court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         It shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” Id. § 2243.

         B. Legal Claims

         Petitioner claims the following as grounds for federal habeas relief: (1) violation of due process and right to present a defense by the trial court's refusal to allow a defense witness to testify; (2) jury instructional error; and (3) ineffective assistance of counsel. (Pet. at 5.) Liberally construed, these claims are cognizable under § 2254 and merit an answer from Respondent.

         C. Motion for Appointment of Counsel

         Petitioner has filed a motion for appointment of counsel. (Docket No. 3.) 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.), cert. denied, 479 U.S. 867 (1986). Unless an evidentiary hearing is required, the decision to appoint counsel is within the discretion of the district court. Id.; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). The petition filed in pro se is well-presented and clearly states his claims. (See Docket No. 1.) Furthermore, it does not appear that an evidentiary hearing is necessary at this stage of the proceedings, and there are no exceptional circumstances to warrant appointment of counsel at this time. Accordingly, Petitioner's motion for appointment ...


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