United States District Court, D. Nevada
LEONARD D. VIGNOLO, Petitioner,
JO GENTRY, et al., Respondents.
P. GORDON UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 is pending before
the Court on, inter alia, petitioner's motions
(ECF Nos. 8 and 11) for an extension of time and motions (ECF
Nos. 3, 7 and 12) for appointment of counsel.
outset, the Court notes that petitioner has been moved back
to Southern Desert Correctional Center from Arizona and no
longer is in the situation with regard to resources, etc.
referenced in the prior order. See ECF No. 9. The Court
accordingly will vacate the portions of the prior order
requiring a response from respondents, such that no response
to petitioner's filings herein will be required from
counsel absent another order.
to petitioner's multiple motions for appointment of
counsel, the Sixth Amendment right to counsel does not apply
in habeas corpus actions. See Knaubert v. Goldsmith,
791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. §
3006A(a)(2)(B) authorizes a district court to appoint counsel
to represent a financially eligible habeas petitioner
whenever "the court determines that the interests of
justice so require." The decision to appoint counsel
lies within the discretion of the court; and, absent an order
for an evidentiary hearing, appointment is mandatory only
when the circumstances of a particular case indicate that
appointed counsel is necessary to prevent a due process
violation. See, e.g., Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir.1986).
Court does not find that the interests of justice require
that counsel be appointed for petitioner. As noted in the
screening order (ECF No. 5), petitioner is challenging a
conviction entered over 26 years ago for a murder committed
over 36 years ago, after having had a prior federal petition
in this Court denied on the merits over a decade ago. The
Court does not have jurisdiction over the petition because,
on its face, it is a successive petition. While the Court has
issued a show-cause order prior to a dismissal in this
action, there is no inexorable requirement that the Court
show-cause the petitioner prior to a dismissal of a
successive petition. Cf. Wentzell v. Neven, 674 F.3d
1124 (9th Cir. 2012)(holding that the district
court improperly dismissed a petition for untimeliness
without first issuing a show-cause order, but making no such
holding with regard to the successive-petition issue).
has demonstrated an adequate ability to present his position
with the resources available to him. The show-cause order
outlines the relevant procedural history and the applicable
law. Petitioner does not need either counsel or extensive law
library time to respond to the show-cause order.
extent that petitioner relies upon alleged actual innocence
to overcome the successive-petition bar, he must present any
such argument to the Court of Appeals - in the first instance
- in an application for authorization to file a second or
successive petition. See 28 U.S.C. §
2244(b)(2)(B) & 3(A). Attempting to present an
actual-innocence argument at this point in this Court will
not lead to a different result, as petitioner first
must obtain authorization from the Court of Appeals, not this
Court, to pursue a successive petition.
motions for appointment of counsel therefore will be denied.
As the Court stated in its first order in the case,
“petitioner must respond to [the show-cause] order in
proper person, without appointed counsel.” (ECF No. 5,
at 3.) Filing multiple motions for appointment of counsel
thereafter will not lead to a different result. The Court
will not appoint counsel for petitioner to respond to the
show-cause order. That is the Court's final word on the
Court will grant petitioner a sixty-day extension to respond
to the show-cause order. That is the only extension that will
be ordered. If petitioner does not timely respond and/or
instead seeks further extensions based on substantially the
same current circumstances and/or files more motions for
appointment of counsel, the action will be dismissed without
further advance notice.
THEREFORE IS ORDERED that the portion of the prior
order directing a response from respondents (ECF No. 9, at 2,
subparagraphs (b) and (c) in lines 2-5), is
VACATED, such that no response is required
from respondents until further order of this Court or a
FURTHER IS ORDERED that petitioner's motions
(ECF Nos. 3, 7 and 12) for appointment of counsel are
FURTHER IS ORDERED that petitioner's motions
(ECF Nos. 8 and 11) for an extension of time are
GRANTED to the extent consistent with this
order, such that petitioner shall have sixty (60)
days from entry of this order within which to
dispatch a response to the prior show-cause order (ECF No.
5). This action will be dismissed without further advance
notice if petitioner does not timely respond or responds and
fails to show cause why the petition should not be dismissed
as a successive petition.
Clerk also shall SEND petitioner another
additional copy of: (a) the show-cause order herein (ECF No.
5); and (b) ECF Nos. 18, 59, and 75 from No.
3:00-cv-00430-ECR-RAM. the Clerk further shall reflect the
transmittal in a publicly accessible ...