Opinion
C21-1285JLR
12-15-2021
BRIAN DIAZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
JAMES L. ROBART United States District Judge
Before the court is Petitioner Brian Diaz's motion to appoint counsel and extend the time to file a responsive brief. (Mot. (Dkt. # 8).) The court has considered the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court GRANTS IN PART and DENIES IN PART Mr. Diaz's motion.
On September 20, 2021, Mr. Diaz filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (2255 Mot. (Dkt. # 1).) Mr. Diaz then requested that the court appoint counsel to represent him in this action. (1st Mot. for Counsel (Dkt. # 5).) The court denied that motion because: (1) “the issues presented in Mr. Diaz's § 2255 motion do not appear to be particularly complex”; (2) “the § 2255 motion . . . demonstrates that he is able to effectively articulate his claims”; and (3) “at this early stage of the litigation, there is no record before the court that would allow it to adequately examine whether Mr. Diaz's claims have merit.” (See 11/10/21 Order (Dkt. # 6).)
On November 19, 2021, Respondent the United States of America (“the Government”) filed its response to Mr. Diaz's § 2255 motion. (2255 Resp. (Dkt. # 7).) In the instant motion, Mr. Diaz again requests that the court appoint counsel to represent him in this action and seeks a 30-day extension of time to file his reply to the Government's response. (See generally Mot.) He alleges that he is “overwhelmed by the task of writing” his reply brief; his legal knowledge is “nearly non-existent”; he has no access to the internet; and his access to legal reference materials is limited. (See Mot. at 2.)
There is no constitutional right to counsel in a post-conviction 28 U.S.C. § 2255 proceeding. See Sanchez v. United States, 50 F.3d 1448, 1456 (9th Cir. 1995). However, the Rules Governing Section § 2255 Cases mandate appointment of counsel when an evidentiary hearing is required, United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 1995), and when necessary for effective discovery pursuant to Rule 6(a). See Rules Governing Section § 2255 Cases Rule 8(c), Rule 6(a). Having reviewed Mr. Diaz's motion and the Government's response, the court concludes that discovery and an evidentiary hearing are unnecessary because the detailed record in this matter is a ORDER sufficient basis on which to decide Mr. Diaz's claims. (See generally 2255 Mot.; 2255 Resp.)
Additionally, a district court may appoint counsel in a case brought under § 2255 at any time in the “interest of justice.” 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). In determining whether to appoint counsel, “the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.” See Weygandt, 718 F.2d at 954.
Having reviewed Mr. Diaz's § 2255 motion and the Government's response, the court does not find that justice requires the appointment of counsel at this time. Although briefing on Mr. Diaz's § 2255 motion is not yet complete, the issues presented do not appear to be particularly complex, and his § 2255 motion demonstrates that he is able to effectively articulate his claims. (See generally 2255 Mot. (setting forth ineffective assistance of counsel claims).) Thus, the court concludes that Mr. Diaz has not demonstrated that the “interests of justice” warrant appointment of counsel in this case.
Regarding Mr. Diaz's request for an extension of time to file his reply, Federal Rule Civil Procedure 6(b)(1) allows the court to extend the time to file a brief “for good cause.” Fed.R.Civ.P. 6(b)(1). Given Mr. Diaz's lack of internet access, limited access to legal reference materials, and the “poor working order” of the prison's typewriters, the court finds that “good cause” exists for his requested extension of 30 days. (See generally Mot.)
Accordingly, the court GRANTS IN PART and DENIES IN PART Mr. Diaz's motion to appoint counsel and extend the time to file a responsive brief (Dkt. # 8). Specifically, the court (1) GRANTS Mr. Diaz's request for an extension of time to file his reply to the Government's response and ORDERS him to file his reply brief, if any, no later than January 28, 2022; and (2) DENIES Mr. Diaz's request to appoint counsel to represent him in this action.