-SKO (HC)Amaro v. Rios, Jr., No. 1:2011cv00234 - Document 8 (E.D. Cal. 2011)
Court Description: ORDER Denying Motion For Appointment Of Counsel (Document # 1 ), FINDINGS And RECOMMENDATIONS To Deny Petitioner's Request For Counsel To Represent Him Before The United States Parole Commission (Document # 1 ), signed by Magistrate Judge Sheila K. Oberto on 2/17/2011. F&R's referred to Judge Oliver W. Wanger; Objections to F&R due by 3/24/2011.(Fahrney, E)
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-SKO (HC)Amaro v. Rios, Jr. Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 QUINN R. AMARO, 12 13 14 15 16 1:11-cv-234-OWW-SKO-HC Petitioner, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (DOCUMENT #1) v. HECTOR A. RIOS, JR., Respondent. ____________________________________/ FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S REQUEST FOR COUNSEL TO REPRESENT HIM BEFORE THE UNITED STATES PAROLE COMMISSION (DOCUMENT #1) 17 I. Motion for the Appointment of Counsel in this Proceeding 18 Petitioner has requested the appointment of counsel. (Pet. 2.) 19 Insofar as Petitioner requests counsel to represent him in the present proceeding, there 20 currently exists no absolute right to appointment of counsel in habeas proceedings. See, e.g., 21 Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 773, 774 22 (8th Cir. 1984). However, Title 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of 23 counsel at any stage of the case if "the interests of justice so require." See Rule 8(c), Rules 24 Governing Section 2254 Cases. In the present case, the Court does not find that the interests of 25 justice require the appointment of counsel at the present time. 26 Accordingly, Petitioner’s request for the appointment of counsel to represent him in 27 this proceeding is DENIED. 28 Dockets.Justia.com 1 II. Motion for the Appointment of Counsel in Parole Commission Proceeding 2 Petitioner also requests this Court to appoint counsel to represent him at a “special 3 reconsideration hearing” to be conducted by an examiner of the United States Parole 4 Commission on March 7, 2011, at his prison. (Pet. 2.) 5 The legal principles applicable to a request for preliminary injunctive relief are well 6 established. To prevail, the moving party must show either "(1) a likelihood of success on the 7 merits and the possibility of irreparable injury, or (2) the existence of serious questions going to 8 the merits and the balance of hardships tipping in [the moving party's] favor." Oakland 9 Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985), 10 quoting Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir. 1984); 11 see also Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985). The two formulations 12 represent two points on a sliding scale with the focal point being the degree of irreparable 13 injury shown. Oakland Tribune, 762 F.2d at 1376. " Under either formulation of the test, the 14 moving party must demonstrate that there exists a significant threat of irreparable injury." Id. 15 In the absence of a significant showing of irreparability, the Court need not reach the issue of 16 likelihood of success on the merits. Id. Speculative injury does not constitute irreparable 17 harm. Goldies' Bookstore, Inc. v. Superior Court of the State of California, 739 F.2d 466, 472 18 (9th Cir. 1984). Further, a party may not seek injunctive relief against individuals who are not 19 named as defendants to this action. The Court is unable to issue an order against individuals 20 who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 21 395 U.S. 100 (1969). 22 In requesting this Court to order the appointment of counsel at the upcoming hearing 23 before a representative of the United States Parole Commission, Petitioner is in effect seeking 24 this Court to enter an order for injunctive relief against persons who are not parties to the 25 instant proceeding. 26 27 Accordingly, it is RECOMMENDED that Petitioner’s request for injunctive relief in the form of a direction to the United States Parole Commission to appoint counsel for 28 2 1 Petitioner be DENIED. 2 These findings and recommendations are submitted to the United States District Court 3 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 4 304 of the Local Rules of Practice for the United States District Court, Eastern District of 5 California. Within thirty (30) days after being served with a copy, any party may file written 6 objections with the Court and serve a copy on all parties. Such a document should be 7 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the 8 objections shall be served and filed within fourteen (14) days (plus three (3) days if served by 9 mail) after service of the objections. The Court will then review the Magistrate Judge’s ruling 10 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: ie14hj February 17, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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