United States District Court, D. Nevada
C. MAHAN, United States District Judge.
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.
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).
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.
motion for appointment of counsel therefore will be denied.
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.
THEREFORE IS ORDERED that petitioner's motion (ECF No. 2)
for appointment of counsel is DENIED.
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.
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