Jose Alfredo Suarez v. Smith, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court considered a pro se habeas petitioner's motion to appoint counsel and extend the deadline to file a second amended petition. The court denied the request for counsel without prejudice and granted the extension, modifying the briefing schedule.
| What the court decided | The model |
|---|---|
Denial of motion to appoint counsel“For the reasons stated above, Petitioner’s motion to appoint counsel is DENIED WITHOUT PREJUDICE.” | agree with court The court correctly applied the Ninth Circuit's two-part test for appointing counsel in civil cases (likelihood of success and inability to articulate claims). It found the first factor weighed against appointment because the petitioner had not yet filed the claims he intended to pursue, making success unpredictable. It found the second factor weighed against appointment because the petitioner had demonstrated prior competence and the current access issues could be cured by the granted extension. The denial without prejudice is appropriate given the procedural posture. |
Grant of motion to extend time to file second amended petition“Further, for good cause shown, the Court GRANTS the motion to extend the time for Petitioner to file an amended petition and modifies the briefing schedule as follows:” | agree with court The court granted the extension for 'good cause shown,' citing the petitioner's difficulty accessing legal property due to prison transfers. This is a standard discretionary ruling to ensure due process and allow the petitioner to present his claims, particularly since the denial of counsel was based partly on the ability to cure these issues with time. |
The order itself: sound — The order correctly identifies the applicable legal standard from binding Ninth Circuit precedent (Cano v. Taylor) and applies it logically to the facts presented. It addresses both prongs of the test separately and provides specific reasons for why each factor weighs against appointment. The reliance on district court cases (Campos, Char) is appropriate for persuasive support but the core reasoning rests on the correct circuit authority. The grant of the extension is procedurally sound and supports the denial of counsel by providing an alternative remedy for the petitioner's access issues.
Opinion
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 JOSE ALFREDO SUAREZ, Case No.: 3:25-cv-01640-CAB-GC 14 Petitioner, ORDER: 15 v. (1) DENYING REQUEST TO 16 SMITH, et al., APPOINT COUNSEL; and 17 Respondents. (2) MODIFYING BRIEFING 18 SCHEDULE. 19 20 [Doc. No. 30] 21 22 23 On June 8, 2026, Jose Alfredo Suarez (“Petitioner”) filed a motion to extend the time 24 to file a second amended petition and for appointment of counsel. [Doc. No. 30.] For the 25 reasons stated below, the Court DENIES Petitioner’s request for the Court to appoint 26 counsel and GRANTS the motion to extend the deadline to file a second amended petition. 27 /// 28 /// 1 I. BACKGROUND 2 On June 26, 2025, Petitioner, proceeding pro se, filed a petition for a writ of habeas 3 corpus under 28 U.S.C. §2254. [Doc. No. 1.] Petitioner later filed a motion to proceed in 4 forma pauperis (“IFP”), [Doc. No. 4], which the Court granted, [Doc. No. 7]. The Court 5 then stayed the case until Petitioner’s state court proceedings concluded. [Doc. No. 18.] 6 Petitioner filed an amended petition during the stay, [Doc. No. 21], and the Court dismissed 7 the amended petition due to the stay, [Doc. No. 22]. Once Petitioner’s state court 8 proceedings concluded, the Court lifted the stay and issued a briefing schedule. [Doc. No. 9 28.] 10 Petitioner now asks the Court to appoint counsel because his current petition is 11 meritorious, he wishes to file an amended petition, he currently lacks access to his legal 12 property, and providing him an attorney will better serve this Court. [Doc. No. 30 at 1–2.] 13 II. LEGAL STANDARD 14 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. Tr. 15 Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, the Court has discretion to appoint 16 an attorney to represent indigent civil litigants upon a showing of “exceptional 17 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “That a pro se 18 litigant may be better served with the assistance of counsel is not the test.” Okler v. MCC 19 IMU Prison, No. 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. Feb. 5, 20 2019). Instead, the Court “must determine whether a) there is a likelihood of success on 21 the merits; and b) the [litigant] is unable to articulate his claims in light of the complexity 22 of the legal issues involved.” Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). Neither 23 factor “is dispositive; rather they must be considered cumulatively.” Id. 24 III. DISCUSSION 25 A. Likelihood of Success 26 Petitioner has stated he plans to file a second amended petition so the Court cannot 27 predict Petitioner’s likelihood of success on any claims to be filed. See Campos v. K.U.S.I. 28 News Media, No. 3:19-cv-01455-BAS-AGS, 2019 WL 4674290, at *2 (S.D. Cal. Sept. 24, 1 2019) (denying motion to appoint counsel in part because it was “simply too soon to tell 2 whether he will be likely to succeed on the merits of any potential constitutional claim”). 3 The Court therefore finds that this factor weighs against the appointment of counsel. 4 B. Petitioner’s Ability to Pursue His Claims 5 Petitioner argues that the Court should appoint him an attorney because he does not 6 have access to his legal property due to transfers in the state prison system. [Doc. No. 30 7 at 4.] “Every pro se prisoner’s ability to litigate a case is hampered to some extent by their 8 indigency and incarceration.” Char v. Tresch, No. CV 23-00402 DKW-WRP, 2023 WL 9 6466379, at *2 (D. Haw. Oct. 4, 2023). Petitioner has demonstrated in his previous filings 10 that he is capable of doing legal research, presenting arguments in writing, and 11 understanding the issues in his case. Although Petitioner’s recent transfers to different 12 facilities in the state prison system have made it difficult for him to access his legal 13 property, this problem can be cured by allowing Petitioner additional time to submit his 14 filings. The Court therefore finds that this factor also weighs against the appointment of 15 counsel. 16 IV. CONCLUSION 17 For the reasons stated above, Petitioner’s motion to appoint counsel is DENIED 18 WITHOUT PREJUDICE. Petitioner may renew his request if his situation changes such 19 that he can make the necessary showing that he is both likely to succeed on the merits of 20 his claims and unable to competently articulate those claims. 21 Further, for good cause shown, the Court GRANTS the motion to extend the time 22 for Petitioner to file an amended petition and modifies the briefing schedule as follows: 23 (1) Petitioner may file a second amended petition by August 5, 2026. 24 (2) Respondents shall file a response to the second amended petition, or if no 25 second amended petition is filed, to the original petition, [Doc. No. 1], by 26 September 2, 2026. 27 /// 28 /// l (3) Petitioner may file a reply to Respondents’ response by September 30, 2026. 2 Itis SO ORDERED. 3 Dated: June 16, 2026 4 GB 5 Hon. Cathy Ann Bencivengo United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28