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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PHIL HAROLD BARBERG, 

Petitioner,

v.

KENNETH QUINN, 

Respondent.

No. C06-845P

ORDER OF DISMISSAL

This matter comes before the Court on a report and recommendation by the Honorable James

P. Donohue, United States Magistrate Judge, regarding Petitioner Phil Harold Barberg’s petition for a

writ of habeas corpus under 28 U.S.C. § 2254. Having reviewed the report and recommendation,

Petitioner’s objections, and the balance of the record, the Court finds and ORDERS as follows:

(1) The Court agrees with Judge Donohue’s recommendation that the habeas petition

should be dismissed as untimely. As Judge Donohue noted, Petitioner’s conviction became final on

August 8, 1998. Under the applicable statute of limitations, Petitioner had until August 9, 1999 to file

a habeas petition under 28 U.S.C. § 2254. Here, Petitioner did not file his habeas petition until June

2006, nearly seven years late. As a result, the petition is subject to dismissal with prejudice as

untimely under 28 U.S.C. § 2244(d)(1).

(2) In his objections, Petitioner suggests that he was unable to file a habeas petition in a

timely manner because, as a convicted sex offender, “[g]oing to the prison law library would mean

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ORDER - 2

exposing myself to risk of assault or even death once my crime was discovered” and that he “did not

bring his court papers with him to prison as other inmates would look for them and place petitioner at

risk.” Petitioner appears to contend that the statute of limitations should be equitably tolled for these

reasons. However, as Judge Donohue noted, a petitioner seeking to invoke equitable tolling must

show: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Here, Petitioner has

not demonstrated that he pursued his rights diligently, nor does the Court regard Plaintiff’s asserted

fears about going to the prison law library or bringing his court papers to prison as “extraordinary

circumstances” to justify his delay in filing this petition. 

(3) Petitioner also appears to suggest that counsel should be appointed to represent him. 

There is no right to appointment of counsel in a habeas proceeding. See Bonin v. Vasquez, 999 F.2d

425, 429 (9th Cir. 1993). Under 18 U.S.C. § 3006A(a)(2)(B), the Court has discretion to appoint

counsel in habeas proceedings when the interests of justice so require. In determining whether to

exercise its discretion to appoint counsel, the Court must consider Petitioner’s likelihood of success on

the merits as well as the ability of Petitioner to articulate his claims pro se in light of the complexity of

the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, Petitioner has

demonstrated a reasonable ability to articulate his claims on a pro se basis. In addition, Petitioner does

not have a likelihood of success on the merits because his petition is untimely. Therefore, the Court

declines to appoint counsel for Petitioner in this matter.

(4) For these reasons, the Court ADOPTS the report and recommendation by Judge

Donohue. Petitioner’s habeas petition under 28 U.S.C. § 2254 is DENIED and this case is

DISMISSED with prejudice.

//

//

//

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ORDER - 3

(5) The Clerk is directed to send copies of this order to Petitioner, to all counsel of record,

and to the Honorable James P. Donohue.

Dated: February 23, 2007.

s/Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

Case 2:06-cv-00845-MJP Document 15 Filed 02/23/07 Page 3 of 3