Opinion
Case No. CV 15-3851-JVS (KK)
02-05-2016
BRIAN DREW EDWARDS, Petitioner, v. STU SHERMAN, Acting Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to Title 28 of the United States Code, section 636, the Court has reviewed the Petition for a Writ of Habeas Corpus, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.
In his objections to the Report, Petitioner also requests appointment of counsel. However, "the sixth amendment right to counsel does not apply in habeas corpus actions." Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). A district court is authorized to appoint counsel for a habeas petitioner when it determines the interests of justice require such appointment (18 U.S.C. § 3006A(a)(2)(B)); however, "[u]nless an evidentiary hearing is required, the decision to appoint counsel is within the discretion of the district court." Knaubert, 791 F.2d at 728. In habeas proceedings, "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998); see also Earp v. Ornoski, 431 F.3d 1158, 1173 (9th Cir. 2005). Here, the Magistrate Judge correctly concluded all of Petitioner's claims could be resolved by reference to the state court record. Accordingly, because an evidentiary hearing is not required, the Court denies Petitioner's request for appointment of counsel.
IT IS THEREFORE ORDERED that Judgment be entered (1) denying the Petition for a Writ of Habeas Corpus; and (2) dismissing this action with prejudice. Dated: February 5, 2016
/s/_________
HONORABLE JAMES V. SELNA
UNITED STATES DISTRICT JUDGE