Ness v. White

W.D. Washington

Ness v. White

DecidedDecember 12, 2023

Docket2:23-cv-00566

StatusUnknown

This text of Ness v. White (Ness v. White) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 TANNER MATTHEW NESS, CASE NO. C23-566 BHS 8 Petitioner, ORDER 9 v. 10 DAN WHITE, 11 Respondent. 12

13 THIS MATTER is before the Court on pro se petitioner Tanner Matthew Ness’s 14 motion for extension of time, Dkt. 19, to file objections to Magistrate Judge S. Kate 15 Vaughan’s Report and Recommendation (R&R), Dkt. 16, recommending the Court deny 16 Ness’s 28 U.S.C. § 2254 habeas petition, Dkt. 4. 17 Ness has already objected to the R&R. Dkt. 18. After he filed his motion for an 18 extension of time, Ness filed additional objections, Dkt. 20, as well as two declarations in 19 support of his objections, Dkts. 21 and 22. His motion seeks 30 additional days to file 20 objections. 21 22 1 The Court will consider both of Ness’s objections, and his declarations, in 2 evaluating the R&R. It will not further extend the objection deadline. Ness’s motion for

3 an extension of time is, to that extent, GRANTED. 4 Ness’s motion also asks the Court to appoint counsel, based primarily on his 5 history of a traumatic brain injury. Dkt. 19 at 2. Under the Criminal Justice Act, courts 6 may appoint counsel for a § 2254 petitioner whenever “the interests of justice so require.” 7 18 U.S.C § 3006A(a)(2)(B); see also 18 U.S.C. § 2254(h). A petitioner in collateral 8 postconviction review proceedings has no constitutional right to representation.

9 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Furthermore, the Rules Governing 10 Section 2254 Cases in the United States District Courts do not contemplate the 11 appointment of counsel absent a court’s grant of an evidentiary hearing or discovery. 12 Rules 6(a), 8(c) of the Rules Governing Section 2254 Cases. 13 Ness has not persuaded the Court that the interests of justice require appointment

14 of counsel in this case. His motion for appointment of counsel is DENIED. The R&R 15 will be addressed in a separate Order. 16 IT IS SO ORDERED. 17 Dated this 12th day of December, 2023. A 18 19 BENJAMIN H. SETTLE 20 United States District Judge

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 TANNER MATTHEW NESS, CASE NO. C23-566 BHS 8 Petitioner, ORDER 9 v. 10 DAN WHITE, 11 Respondent. 12

13 THIS MATTER is before the Court on pro se petitioner Tanner Matthew Ness’s 14 motion for extension of time, Dkt. 19, to file objections to Magistrate Judge S. Kate 15 Vaughan’s Report and Recommendation (R&R), Dkt. 16, recommending the Court deny 16 Ness’s 28 U.S.C. § 2254 habeas petition, Dkt. 4. 17 Ness has already objected to the R&R. Dkt. 18. After he filed his motion for an 18 extension of time, Ness filed additional objections, Dkt. 20, as well as two declarations in 19 support of his objections, Dkts. 21 and 22. His motion seeks 30 additional days to file 20 objections. 21 22 1 The Court will consider both of Ness’s objections, and his declarations, in 2 evaluating the R&R. It will not further extend the objection deadline. Ness’s motion for

3 an extension of time is, to that extent, GRANTED. 4 Ness’s motion also asks the Court to appoint counsel, based primarily on his 5 history of a traumatic brain injury. Dkt. 19 at 2. Under the Criminal Justice Act, courts 6 may appoint counsel for a § 2254 petitioner whenever “the interests of justice so require.” 7 18 U.S.C § 3006A(a)(2)(B); see also 18 U.S.C. § 2254(h). A petitioner in collateral 8 postconviction review proceedings has no constitutional right to representation.

9 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Furthermore, the Rules Governing 10 Section 2254 Cases in the United States District Courts do not contemplate the 11 appointment of counsel absent a court’s grant of an evidentiary hearing or discovery. 12 Rules 6(a), 8(c) of the Rules Governing Section 2254 Cases. 13 Ness has not persuaded the Court that the interests of justice require appointment

14 of counsel in this case. His motion for appointment of counsel is DENIED. The R&R 15 will be addressed in a separate Order. 16 IT IS SO ORDERED. 17 Dated this 12th day of December, 2023. A 18 19 BENJAMIN H. SETTLE 20 United States District Judge

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