Dunn v. Covello

• Court: District Court, N.D. California
• Decided: June 21, 2023
• Docket: 5:21-cv-09036
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KEYLEN M. DUNN, Case No. 21-cv-09036-YGR (PR)

8 Petitioner, ORDER DENYING PETITIONER’S MOTIONS FOR APPOINTMENT OF 9 v. COUNSEL AND FOR AN EVIDENTIARY HEARING; AND 10 PATRICK COVELLO, Warden, GRANTING HIM EXTENSION OF TIME TO FILE TRAVERSE Respondent. 11

12 Petitioner has requested the appointment of counsel and an evidentiary hearing. Dkts. 32, 13 33. 14 The Sixth Amendment right to counsel does not apply in habeas corpus actions. See 15 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Title 18 U.S.C. § 3006A (a)(2)(B), 16 however, authorizes a district court to appoint counsel to represent a habeas petitioner whenever 17 “the court determines that the interests of justice so require” and such person is financially unable 18 to obtain representation. The decision to appoint counsel is within the discretion of the district 19 court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at 728; 20 Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). 21 The courts have made appointment of counsel the exception rather than the rule by limiting 22 it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or mixed 23 legal and factual questions; (3) cases involving uneducated or mentally or physically impaired 24 petitioners; (4) cases likely to require the assistance of experts either in framing or in trying the 25 claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and 26 (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus 27 Practice and Procedure § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when 1 process violations. See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 2 1965). At this juncture, it is not apparent that the appointment of counsel is warranted on any of 3 the grounds set forth above. Accordingly, the interests of justice do not require appointment of 4 || counsel, and petitioner’s request is DENIED. Dkt. 33. 5 There also is no indication that an evidentiary hearing is required under 28 U.S.C. 6 || § 2254(e). Petitioner’s claims do not rely upon extra-record evidence and a factual basis exists in 7 || the record to determine the claims. If during its review of the merits of the petition the Court 8 determines that further fact finding is required, the Court will decide whether to hold an 9 evidentiary hearing or whether the facts can be gathered by way of mechanisms short of an 10 || evidentiary hearing, such as supplementation of the record with sworn declarations from the 11 pertinent witnesses. See Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). 12 For these reasons, petitioner’s requests for the appointment of counsel! and an evidentiary 5 13 hearing are DENIED. Dkts. 32, 33. 14 Petitioner’s traverse was due on June 5, 2023, and, to date, petitioner has not filed a 15 traverse. The Court sua sponte GRANTS petitioner an extension of time to file his traverse. The 16 || time in which petitioner shall file his traverse will be extended up to and including sixty (60) days 3 17 from the date of this Order. Should petitioner fail to file a traverse, the petition will be deemed S 18 submitted on the date the traverse is due. 19 This Order terminates Docket Nos. 32 and 33. 20 IT IS SO ORDERED. 21 Dated: June 21, 2023 22 23 Lopeat Hype Cece J E YVONNE GONZALEZ ROGERS 24 United States District Judge 25 26 27 ' The denial of petitioner’s request for appointment of counsel is without prejudice to the 28 Court’s sua sponte reconsideration should the Court find an evidentiary hearing necessary following consideration of the merits of petitioner’s claims.