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ORDER DENYING PETITIONER’S APPLICATION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ROBERT DURALL,

Petitioner,

v.

KENNETH QUINN,

Respondent.

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CASE NO. C06-1012-MJP-MAT

ORDER DENYING PETITIONER’S

APPLICATION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

Petitioner has submitted to this Court for review a petition for writ of habeas corpus under

28 U.S.C. § 2254. Petitioner has also submitted an application for leave to proceed with this

action in forma pauperis (“IFP application”) and a motion for appointment of counsel.

Petitioner’s IFP application, and accompanying documents, reveal that petitioner currently has a

spendable balance of over $1,600 in his prison trust account. These funds are more than adequate

to pay the $5 filing fee for the instant action. Petitioner appears to argue, however, that his IFP

application should nonetheless be granted because he currently has outstanding legal financial

obligations which far exceed his ability to pay, and because the instant action is likely to require

additional fees as the case progresses, including counsel fees. Petitioner notes that he has

Case 2:06-cv-01012-MJP Document 3 Filed 08/03/2006 Page 1 of 3

Durall v. Quinn Doc. 3

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ORDER DENYING PETITIONER’S APPLICATION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

PAGE -2

previously been allowed to proceed in forma pauperis in state appellate court proceedings. 

Pursuant to 28 U.S.C. § 1915(a)(1), a court may authorize the commencement of an

action, without the prepayment of fees, by a person who establishes that he is unable to pay such

fees. Petitioner’s documentation clearly establishes that he is financially able to pay the $5 filing

fee to commence this action. Whether petitioner may be deemed financially eligible for

appointment of counsel for purposes of 18 U.S.C. 3006A is a separate question, and one which

need not be resolved at this time.

As noted above, petitioner has submitted a motion for appointment of counsel. 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. 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. At this juncture, the Court is not satisfied that the interests of justice are best served by

appointment of counsel. If the Court later determines that an evidentiary hearing is required, or

if petitioner later satisfies the Court that the interests of justice otherwise require the appointment

of counsel, petitioner will be given an opportunity to establish that he is financially eligible for such

an appointment.

Based upon the foregoing, the Court does hereby ORDER as follows:

(1) Petitioner’s application to proceed in forma pauperis is DENIED. Petitioner is

directed to pay the $5 filing fee within thirty (30) days of the date of this Order. If petitioner fails

to timely pay the requisite fee, the action will be dismissed without prejudice.

Case 2:06-cv-01012-MJP Document 3 Filed 08/03/2006 Page 2 of 3
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ORDER DENYING PETITIONER’S APPLICATION

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

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(2) Petitioner’s motion for appointment of counsel is also DENIED.

(3) The Clerk shall direct copies of this Order to petitioner and to the Honorable Mary

Alice Theiler.

DATED this 3rd day of August, 2006.

A

Marsha J. Pechman

United States District Judge

Recommended for Entry

this 2nd day of August, 2006.

s/ Mary Alice Theiler 

United States Magistrate Judge

Case 2:06-cv-01012-MJP Document 3 Filed 08/03/2006 Page 3 of 3