Opinion
No. C11-5694 BHS/KLS
09-19-2011
MICHAEL VASILIY KOLESNIK, Petitioner, v. PATRICK GLEBE, Respondent.
ORDER DENYING MOTION FOR THE
APPOINTMENT OF COUNSEL
This 28 U.S.C. § 2254 petition has been assigned to United States Magistrate Judge Karen L. Strombom pursuant to 28 U.S. C. § 636(b)(1) and Local MJR 3 and 4. Petitioner has filed a motion for the appointment of counsel. ECF No. 6. Petitioner requests that counsel be appointed to assist him in developing the facts in support of his petition. In particular, Petitioner maintains that to fully develop his claim that his trial counsel was ineffective, he needs a psychiatric or psychological evaluation of his mental condition at the time of the crime. ECF No. 6, p. 2.
There is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254 unless an evidentiary hearing is required, because the action is civil, not criminal, in nature. See Terravona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988); Brown v. Vasquez, 952 F.2d 1164, 1168 (9th Cir. 1992); and Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts. In addition, if a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before the state court." Cullen v. Pinholster, --- U.S. ---, 131 S.Ct. 1388, 1399 (2011). Therefore, Petitioner's request for federal habeas relief on his ineffective assistance of counsel claim must be determined solely on the basis of the record that was before the state court.
In addition, an evidentiary hearing has not been granted in this case and the claims in the petition are adequately set forth and articulated. The court has not yet determined that an evidentiary hearing is necessary. Therefore, Petitioner's request for counsel shall be denied at this time.
Accordingly, it is ORDERED:
(1) Petitioner's motion for counsel (ECF No. 6) is DENIED.
(2) The Clerk is directed to send copies of this Order to Petitioner.
Karen L. Strombom
United States Magistrate Judge