Opinion
Case No. CV 11-8829 CAS (JCG)
04-16-2014
FABIAN MASSEY, Petitioner, v. FRANK X. CHAVEZ, Warden, Respondent.
ORDER ACCEPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Motion for Time Enlargement and Opposition to Report and Recommendation ("Motion"), and the remaining record, and has made a de novo determination.
In his Motion, Petitioner requests an enlargement of time to seek appellate counsel so that he can "move to the next phase of judicial [proceedings] in the [Ninth] Circuit[.]" (Mot. at 1.)
Foremost, Petitioner's request for an enlargement of time to seek counsel is denied. The Court finds that appointment of counsel is not necessary to avoid due process violations in the instant action. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986) ("[T]he sixth amendment right to counsel does not apply in habeas corpus actions."); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986) ("Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations."). Further, Petitioner has not shown that he has been unable to articulate his positions because of the complexity of the claims. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (observing that the decision to appoint counsel turns on petitioner's ability to articulate claims in light of the complexity of the issues and the likelihood of success on the merits).
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.
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HON. CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE