Franklin v. Sherman

Full title: JONATHAN SCOTT FRANKLIN, Petitioner, v. STU SHERMAN, Warden, Respondents.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: May 15, 2015

2:14-cv-2496 KJN P (E.D. Cal. May. 15, 2015)

Opinion

JONATHAN SCOTT FRANKLIN, Petitioner, v. STU SHERMAN, Warden, Respondents. No. 2:14-cv-2496 KJN P United States District Court, E.D. California. May 15, 2015

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On May 8, 2015, petitioner filed a motion for appointment of counsel, and a motion for extension of time to file a request for de novo review of the case.

         Motion for Appointment of Counsel

         Petitioner has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel. Petitioner's motion is denied.

         Motion for Extension of Time

         Petitioner seeks an extension of time to request de novo review of this action. However, petitioner consented to the jurisdiction of the undersigned for all purposes. See 28 U.S.C. § 636(c). Section 636(c)(3) provides, in pertinent part:

Upon entry of judgment..., an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court. The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph shall be construed as a limitation of any party's right to seek review by the Supreme Court of the United States.

28 U.S.C. § 636(c)(3).

         Thus, petitioner is not entitled to de novo review of this court's judgment. If petitioner seeks to challenge the April 17, 2015 judgment, petitioner must file a notice of appeal, which will be heard by the Court of Appeals for the Ninth Circuit. This court will grant petitioner a brief extension of time in which to file a notice of appeal. Petitioner is cautioned that 28 U.S.C. § 2107 limits this court's discretion in granting extensions of time to file an appeal.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Petitioner's motion for the appointment of counsel (ECF No. 17) is denied;

         2. Petitioner's motion for an extension of time to request de novo review (ECF No. 16) is denied; and

         3. Petitioner is granted twenty-one days in which to file a notice of appeal.