Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ALFREDO SUAREZ, Case No.: 3:25-cv-1640-CAB-GC 12 Petitioner, ORDER: 13 v. (1) DENYING MOTION FOR 14 APPOINTMENT OF COUNSEL, 15 SMITH, Warden, [Doc. No. 32]; and 16 Respondent. (2) DENYING MOTION TO AMEND 17 PETITION AS MOOT AND SETTING BRIEFING SCHEDULE 18 ON MOTION FOR STAY, [Doc. No. 19 33]. 20 21 Petitioner Jose Alfredo Suarez (“Petitioner”), a state prisoner, is proceeding pro se 22 with a federal habeas action pursuant to 28 U.S.C. § 2254. On July 24, 2026, Petitioner 23 filed a Motion for Appointment of Counsel, [Doc. No. 32], and a “Motion to Amend 24 Petition for Habeas Corpus and Motion for Stay,” [Doc. No. 33]. On the same day, 25 Petitioner also filed a Second Amended Petition (“SAP”). [Doc. No. 34.] For the reasons 26 discussed below, the Court DENIES the request for appointment of counsel, DENIES the 27 motion to amend as moot, and ORDERS briefing on the stay motion. 28 / / / 1 I. MOTION FOR APPOINTMENT OF COUNSEL 2 The instant motion for appointment of counsel is the third such motion Petitioner 3 has filed in this case. [See Doc. Nos. 20, 30.] Most recently, the Court denied Petitioner’s 4 second motion for appointment of counsel without prejudice on June 16, 2026. [Doc. No. 5 31.] As discussed in that Order, petitioners do not have an absolute right to counsel in 6 habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 7 Nevertheless, by statute, district courts have discretion to appoint counsel in habeas 8 proceedings for “any person financially unable to obtain adequate representation” when 9 “the interests of justice so require[.]” 18 U.S.C. § 3006A(a)(2). “In deciding whether to 10 appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of 11 success on the merits as well as the ability of the petitioner to articulate his claims pro se 12 in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 13 954 (9th Cir. 1983). In the Ninth Circuit, “[i]ndigent state prisoners applying for habeas 14 corpus relief are not entitled to appointed counsel unless the circumstances of a particular 15 case indicate that appointed counsel is necessary to prevent due process violations.” 16 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). 17 In his current motion, Petitioner states he is housed in the “Restrictive Interaction 18 Housing Unit” at Corcoran State Prison, where the law library “no longer offer[s] any 19 material to [conduct] legal case law research[.]” [Doc. No. 32 at 2.] Instead, the library 20 offers only “legal court forms and legal copies.” Id. While the facility offers access to 21 case law legal research on an “App” available on tablets issued to inmates, Petitioner states 22 that he is unable to “effectively use this app for [legal] research.” Id. 23 As this Court has previously found, Petitioner has demonstrated in his prior filings 24 that he is capable of understanding the issues and presenting his arguments in writing. [See, 25 e.g., Doc. No. 31 at 3.] Moreover, at this stage in the proceedings, the Court again finds 26 that Petitioner has failed to show a likelihood of success on the merits. Therefore, 27 Petitioner’s motion for appointment of counsel, [Doc. No. 32], is DENIED without 28 prejudice. 1 II. MOTION TO FILE AMENDED PETITION AND MOTION FOR STAY 2 Petitioner has also filed a motion in which he (1) seeks leave to file an amended 3 petition and (2) asks this Court to stay the proceedings while he exhausts claims in the state 4 courts. [Doc. No. 33.] 5 A. Motion to Amend 6 First, the Court denies Petitioner’s request to file an amended petition. This Court 7 specifically permitted Petitioner to file an amended petition, if he chose to do so, after the 8 stay of proceedings was lifted. [See Doc. No. 28 at 2, Doc. No. 31 at 3.] And Petitioner 9 has since filed an SAP, which is currently before the Court. [See Doc. No. 34.] Therefore, 10 the request to file an amended petition is DENIED as moot. 11 B. Motion to Stay 12 Next, as to Petitioner’s motion to stay the case for a second time during the course 13 of these proceedings,1 the Court finds briefing is appropriate. In his SAP, Petitioner raises 14 three claims2: (1) his due process rights were violated because the judge who denied his 15 resentencing petition had a conflict of interest and engaged in impermissible fact-finding; 16 (2) he received ineffective assistance of appellate counsel during the appeal of his 17 resentencing denial; and (3) the cumulative errors, including judicial bias and ineffective 18 assistance of counsel, rendered his resentencing hearing fundamentally unfair in violation 19 of due process. [Doc. No. 34 at 8, 39, 43.] 20 To obtain habeas relief, a petitioner must have first “exhausted the remedies 21 available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A). Here, while Petitioner 22 23 24 1 The Court previously stayed these proceedings while Petitioner completed direct appellate review of the 25 denial of his resentencing petition in the state courts. [See Doc. No. 18.] Those state court proceedings concluded on May 13, 2026, when the California Supreme Court denied Petitioner’s petition for review. 26 [See Doc. No. 28 at 2 (taking judicial notice of the state court appeal record).] This Court lifted the stay on May 21, 2026. [See id. at 2.] 27 2 None of the claims raised in Petitioner’s original petition are raised in his SAP. [Compare Doc. Nos. 1-2 at 9, 1-5 at 7, 13 with Doc. No. 34 at 8, 39, 43.] 28 1 alleges he has exhausted his first ground for relief by raising it in his petition for review to 2 the California Supreme Court, [see Doc. No. 34 at 7; see also Doc. No. 33 at 2, 12], he 3 acknowledges grounds two3 and three have not been presented to the California Supreme 4 Court. [See Doc. No. 34 at 38, 42.] As such, the SAP appears to be “mixed.” See Robbins 5 v. Carey, 481 F.3d 1143, 1145 (9th Cir. 2007) (stating “a ‘mixed’ petition consist[s] of 6 both exhausted and unexhausted claims”). When a habeas petition is mixed, a district court 7 has discretion to stay the proceedings, but “only in limited circumstances.” Rhines v. 8 Weber, 544 U.S. 269, 277 (2005).4 Accordingly, the Court ORDERS further briefing on 9 Petitioner’s motion to stay these proceedings for a second time. 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 23 24 3 To the extent Petitioner asks this Court to “order ground two need not be exhausted before the state 25 courts[,]” [Doc. No. 33 at 7], his request is DENIED. See 28 U.S.C. § 2254(b)(1)(A) (stating a “writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be 26 granted unless . . . the applicant has exhausted the remedies available in the courts of the State”) (emphasis added). 27 4 Under Rhines, a stay may be appropriate where: (1) there is “good cause” for the petitioner’s failure to exhaust, (2) the unexhausted claims are not “plainly meritless,” and (3) the petitioner did not “engage[] in 28 I Hl. CONCLUSION 2 For the above reasons, the Court: 3 (1) DENIES Petitioner’s Motion for Appointment of Counsel, [Doc. No. 32], 4 || without prejudice; 5 (2) DENIES Petitioner’s Motion to Amend Petition for Writ of Habeas, [Doc. 6 || No. 33], as moot; and 7 (3) ORDERS BRIEFING as to Petitioner’s accompanying Motion to Stay, [Doc. 8 || No. 33], as follows: 9 a. Respondent must file a response to Petitioner’s Motion for Stay 10 no later than October 26, 2026. The response must not exceed a total 11 of twenty-five (25) pages in length without leave of the Court. See S.D. 12 CivLR 7.1(e). 13 b. Petitioner shall file a reply, if any, to the Respondent’s response 14 no later than November 23, 2026. If Petitioner elects to file a reply, it 15 must not exceed ten (10) pages in length without leave of the Court. 16 See id. 17 IT IS SO ORDERED. 18 Dated: September 23, 2026 ©; Z 19 Hon. Cathy Ann Bencivengo 20 United States District Judge 21 22 23 24 25 26 27 28