(HC) Booker v. Lynch

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES BOOKER, Case No. 2:20-cv-01894-TLN-JDP (HC) 11 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL AND 12 v. GRANTING MOTION FOR EXTENSION OF TIME J. LYNCH, ECF No. 15 14 Respondent.

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 26, 2021, petitioner was ordered to show cause why this action should not be dismissed for failure to prosecute and for failure to state a claim. ECF No. 14. In response, petitioner filed a motion for an appointment of counsel and for an extension of time to respond to the February 26 order to show cause. ECF No. 15.

A petitioner in a habeas proceeding does not have an absolute right to appointment of counsel. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, the court is authorized to appoint counsel at any stage of the case “if the interests of justice so require.” See See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B). In assessing whether to appoint counsel, the court evaluates the petitioner’s likelihood of success on the merits and his ability to articulate his claims, considering the complexity of the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

1 The court cannot conclude at this point that the interests of justice warrant appointing | petitioner counsel. The legal issues involved in this action are not exceptionally complicated, and || petitioner has not demonstrated a likelihood of success on the merits. Accordingly, petitioner’s | motion to appoint counsel, ECF No. 15, is denied without prejudice.

5 Petitioner, however, will be granted an extension of time to respond to the February 26, | 2021 order to show cause. He is reminded that if he wishes to continue with this action, he must | also file an amended petition for writ of habeas corpus.

8 Accordingly, it is hereby ORDERED that: 9 1. Petitioner’s motion for appointment of counsel, ECF No. 15, is denied.

10 2. Petitioner’s motion for an extension of time to respond to the February 26, 2021 order || to show cause is granted, and petitioner shall file his response by no later than June 7, 2021.

12 3. Petitioner is granted until June 7, 2021 to file an amended petition.

13 4. Failure to comply with any part of this order will result in a recommendation that this | action be dismissed.

15 | IT IS SO ORDERED.

17 | Dated: _ April 6, 2021 sa JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE