Summary
explaining "nor does the Court regard Plaintiff's asserted fears about going to the prison law library or bringing his court papers to prison as 'extraordinary circumstances' to justify his delay in filing this petition"
Summary of this case from Mendoza v. PollardOpinion
No. C06-845P.
February 23, 2007
ORDER OF DISMISSAL
This matter comes before the Court on a report and recommendation by the Honorable James P. Donohue, United States Magistrate Judge, regarding Petitioner Phil Harold Barberg's petition for a writ of habeas corpus under 28 U.S.C. § 2254. Having reviewed the report and recommendation, Petitioner's objections, and the balance of the record, the Court finds and ORDERS as follows:
(1) The Court agrees with Judge Donohue's recommendation that the habeas petition should be dismissed as untimely. As Judge Donohue noted, Petitioner's conviction became final on August 8, 1998. Under the applicable statute of limitations, Petitioner had until August 9, 1999 to file a habeas petition under 28 U.S.C. § 2254. Here, Petitioner did not file his habeas petition until June 2006, nearly seven years late. As a result, the petition is subject to dismissal with prejudice as untimely under 28 U.S.C. § 2244(d)(1).
(2) In his objections, Petitioner suggests that he was unable to file a habeas petition in a timely manner because, as a convicted sex offender, "[g]oing to the prison law library would mean exposing myself to risk of assault or even death once my crime was discovered" and that he "did not bring his court papers with him to prison as other inmates would look for them and place petitioner at risk." Petitioner appears to contend that the statute of limitations should be equitably tolled for these reasons. However, as Judge Donohue noted, a petitioner seeking to invoke equitable tolling must show: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Here, Petitioner has not demonstrated that he pursued his rights diligently, nor does the Court regard Plaintiff's asserted fears about going to the prison law library or bringing his court papers to prison as "extraordinary circumstances" to justify his delay in filing this petition.
(3) Petitioner also appears to suggest that counsel should be appointed to represent him. There is no right to appointment of counsel in a habeas proceeding. See Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993). Under 18 U.S.C. § 3006A(a)(2)(B), the Court has discretion to appoint counsel in habeas proceedings when the interests of justice so require. In determining whether to exercise its discretion to appoint counsel, the Court must consider Petitioner's likelihood of success on the merits as well as the ability of Petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, Petitioner has demonstrated a reasonable ability to articulate his claims on a pro se basis. In addition, Petitioner does not have a likelihood of success on the merits because his petition is untimely. Therefore, the Court declines to appoint counsel for Petitioner in this matter.
(4) For these reasons, the Court ADOPTS the report and recommendation by Judge Donohue. Petitioner's habeas petition under 28 U.S.C. § 2254 is DENIED and this case is DISMISSED with prejudice.
(5) The Clerk is directed to send copies of this order to Petitioner, to all counsel of record, and to the Honorable James P. Donohue.