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ORDER RE: PENDING MOTIONS

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DARRELL B. EASON, )

)

Petitioner, ) CASE NO. C06-322-JCC-JPD

)

v. )

)

EVERETT MUNICIPAL COURT, ) ORDER RE: PENDING MOTIONS

)

Respondent. )

____________________________________)

This is a federal habeas action brought pursuant to 28 U.S.C. § 2254. This matter comes

before the Court at the present time on petitioner’s motion for a protective order requiring

respondent to stay his sentencing hearing, on respondent’s motion for relief from the deadline to

file its reply brief in support of its amended answer, on respondent’s motion to strike petitioner’s

third reply brief, and on petitioner’s motion for appointment of counsel. The Court, having

reviewed these motions, and the balance of the record, does hereby find and ORDER as follows:

(1) Petitioner’s motion for a protective order requiring respondent to stay his

sentencing hearing (Dkt. No. 20) is STRICKEN. It appears from the record that petitioner was

sentenced in the Everett Municipal Court on September 27, 2006. Thus, petitioner’s request to

stay that hearing is now moot.

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ORDER RE: PENDING MOTIONS

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(2) Respondent’s motion for relief from the deadline to file its reply brief in support of

its amended answer (Dkt. No. 27) is GRANTED. Respondent’s reply brief was received on

October 25, 2006, and has been made a part of the record.

(3) Respondent’s motion to strike petitioner’s third reply brief (Dkt. No. 32) is

DENIED. Respondent, by way of the instant motion, asks this Court to strike a document

apparently entitled Petitioner’s Third Reply Brief. The Court is in possession of no such

document. The Court did receive from petitioner on November 13, 2006, a document entitled

“Petitioner’s Answer to Respondent’s Reply in Opposition to 2254 Petition.” However, it is not

clear that this is the document being referenced in respondent’s motion. By this Court’s count,

the November 13, 2006, is petitioner’s second reply brief. And, while true that the briefing

schedule set by the Court does not allow for such a brief, nothing contained therein would appear

to prejudice respondent in any way. Moreover, petitioner attaches to this brief the jury

instructions which are relevant to his claims. As respondent failed to provide these documents as

a part of its own submission, the Court deems it necessary to ensure that they remain in the

record.

(4) Petitioner's motion for appointment of counsel (Dkt. No. 33) is DENIED. There

is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254 unless an

evidentiary hearing is required. See Terravona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988);

Brown v. Vasquez, 952 F.2d 1164, 1168 (9th Cir. 1992); and Rule 8(c) of the Rules Governing

Section 2254 Cases in the United States District Courts. At this juncture, it does not appear that

an evidentiary hearing will be required to resolve petitioner’s claims. Thus, petitioner has no

right to have counsel appointed. The Court may exercise its discretion to appoint counsel for a

financially eligible individual where the "interests of justice so require." 18 U.S.C. § 3006A. 

However, petitioner fails to demonstrate that the interests of justice are best served by

appointment of counsel in this matter at the present time.

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ORDER RE: PENDING MOTIONS

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(5) The Clerk is directed to send copies of this Order to petitioner, to counsel for

respondent, and to the Honorable John C. Coughenour.

DATED this 13th day of December, 2006.AJAMES P. DONOHUE

United States Magistrate Judge 

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