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White v. Gentry

United States District Court, D. Nevada

February 16, 2018

SHAWN LEWIS WHITE, Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

          JAMES C. MAHAN, United States District Judge.

         This habeas matter under 28 U.S.C. § 2254 comes before the court on petitioner's motion (ECF No. 2) for appointment of counsel and further in connection with a pending show-cause inquiry as to whether the petition is subject to dismissal as untimely.

         On the counsel motion, 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); Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir.1965).

         Following review of the show-cause response and petitioner's request for appointment of counsel, the court does not find that the interests of justice require the appointment of counsel at this juncture. Petitioner has demonstrated an adequate ability to articulate his position, including with citation to case authority, with the resources available to him. Petitioner's equitable tolling arguments do not present specific factual particulars that would warrant further factual development through counsel, and his actual innocence argument potentially can be addressed on the state court record materials filed pursuant to this order.

         The motion for appointment of counsel therefore will be denied.

         In connection with petitioner's actual innocence argument, the court will direct service on respondents for a limited records-only response with state court record exhibits relating to the argument.

         IT THEREFORE IS ORDERED that petitioner's motion (ECF No. 2) for appointment of counsel is DENIED.

         IT FURTHER IS ORDERED that the clerk shall add state attorney general Adam P. Laxalt as counsel for respondents and shall make informal electronic service of this order upon respondents by directing a notice of electronic filing to him, along with regenerated notices of filing of the prior filings herein. Respondents' counsel shall enter a notice of appearance within twenty-one (21) days of entry of this order and respond as per the following.

         IT FURTHER IS ORDERED that, within forty-five (45) days of entry of this order, respondents shall file and serve upon petitioner a set of exhibits with copies of:

(a) the minutes for both the justice court proceedings and the state district court proceedings related to the two criminal cases against petitioner in No. C208788 and C210008;
(b) the transcript(s), if previously prepared, for the preliminary hearing(s) for both prosecutions;
(c) all charging documents for both prosecutions;
(d) all notices of intent to seek the death penalty, if separate from the charging documents, and any additional papers reflecting whether petitioner still faced a possible ...

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