Opinion
Case No. C08-1239RSL.
January 5, 2009
ORDER GRANTING MOTION FOR EXTENSION OF TIME; DENYING MOTION FOR A STAY; DENYING MOTION TO APPOINT COUNSEL
This matter comes before the Court on petitioner's motion for extension of time to file a motion "for reconsideration of an order dismissing petitioner's habeas corpus with prejudice" (Dkt. #13) and on his motion to appoint counsel and to stay the proceedings pending reconsideration. Petitioner apparently believes that his petition was dismissed by the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge. In fact, the Report and Recommendation merely recommended dismissal of his petition. The letter accompanying the Report and Recommendation explicitly stated that petitioner could file objections to the Report and Recommendation, but he has not done so.
The Court construes the motions as requests for an extension of time to file his objections. Despite his arguments to the contrary, petitioner's commitments in another case that he filed do not warrant an extension in this case. Moreover, the Report and Recommendation recommends dismissal based on a single, straightforward issue: the timeliness of petitioner's filing. However, petitioner also states that he had difficulty accessing the law library on one occasion and is currently in segregation. For these reasons, petitioner's motion for an extension (Dkt. #13) is GRANTED. The Court grants him a thirty-day extension. Petitioner must file any objections to the Report and Recommendation no later than January 26, 2009. The Clerk of the Court is directed to renote the Report and Recommendation (Dkt. #12) on the Court's calendar for January 30, 2009.
Petitioner's request to stay the proceedings pending the filing of a motion for reconsideration is DENIED (Dkt. #14). Because the Report and Recommendation is not a final order, no motion for reconsideration is warranted. Petitioner has been granted additional time to file his objections to the Report and Recommendation, so there is no need for a stay.
Petitioner also requests that the Court appoint counsel. There is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254 unless an evidentiary hearing is required. See McCleskey v. Zant, 499 U.S. 467, 495 (1991); Rule 8(c) of the Rules Governing Section 2254 Proceedings for the United States District Courts. The Court may exercise its discretion to appoint counsel for a financially eligible individual where the "interests of justice so require" under 18 U.S.C. § 3006A. Whether counsel should be appointed turns on the petitioner's ability to articulate his or her claims in light of the complexity of the legal issues and the likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Petitioner fails to demonstrate that the interests of justice would be best served by appointment of counsel in this matter. As set forth in the Report and Recommendation, petitioner has not shown a likelihood of success on the merits. If the Court later orders an evidentiary hearing, the court will appoint counsel, assuming petitioner qualifies as indigent. Petitioner's motion for appointment of counsel (Dkt. #14) is DENIED.