Opinion
No. CV 21-08042-PCT-JAT (JFM)
03-12-2021
Drew Witzig, Petitioner, v. David Shinn, Respondent.
ORDER
On February 24, 2021, Petitioner Drew Witzig, who is confined in CoreCivic's Red Rock Correctional Center in Eloy, Arizona, filed a Request for Leave to File Oversized Brief (Doc. 1), lodged a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 2) and a Memorandum of Points and Authorities in Support of Writ of Habeas Corpus (Docs. 2-1 and 2-2), and filed an Application to Proceed In Forma Pauperis (Doc. 3) and a Request for the Appointment of Counsel (Doc. 5). The Court will grant the Request for Leave to File, direct the Clerk of Court to file the § 2254 Petition and the Memorandum, deny the Application to Proceed In Forma Pauperis, and deny without prejudice the Request for the Appointment of Counsel.
I. Request for Leave to File
Petitioner seeks permission to "exceed the page limit of his Memorandum of Points and Authorities" because he "has multiple issues and a lack of legal knowledge of how to properly condense these issues." The Court, in its discretion, will grant the Request for Leave to File and will direct the Clerk of Court to file the lodged § 2254 Petition and Memorandum.
II. Application to Proceed In Forma Pauperis
Local Rule of Civil Procedure 3.5(c) requires payment of the $5.00 statutory filing fee if a petitioner has more than $25.00 in his inmate account. Petitioner's Application to Proceed indicates that he currently has more than $25.00 in his inmate account. Accordingly, the Court will deny the Application to Proceed and will give Petitioner 30 days to pay the $5.00 filing fee. If Petitioner fails to pay the $5.00 filing fee within 30 days, the Petition for a Writ of Habeas Corpus will be dismissed.
III. Request for the Appointment of Counsel
"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." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B).
Petitioner has not made the necessary showing for appointment of counsel at this time, and, therefore, his Request for the Appointment of Counsel will be denied without prejudice. If, at a later date, the Court determines that an evidentiary hearing is required, counsel will be appointed in accordance with Rule 8(c) of the Rules Governing Section 2254 Proceedings.
IV. Warnings
A. Address Changes
Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. . . . . . . . .
B. Possible Dismissal
If Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Petitioner's Request for Leave to File Oversized Brief (Doc. 1) is granted.
(2) The Clerk of Court must file the lodged Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (lodged at Doc. 2) and file separately the lodged Memorandum of Points and Authorities in Support of Writ of Habeas Corpus (lodged at Docs. 2-1 and 2-2).
(3) Petitioner's Application to Proceed In Forma Pauperis (Doc. 3) is denied.
(4) Within 30 days of the date this Order is filed, Petitioner must pay the $5.00 filing fee.
(5) If Petitioner fails to pay the $5.00 filing fee, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Petitioner and deny any pending unrelated motions as moot.
(6) Petitioner's Request for Appointment of Counsel (Doc. 5) is denied without prejudice.
Dated this 12th day of March, 2021.
/s/ _________
James A. Teilborg
Senior United States District Judge