Johnson v. Allison

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID LEONARD JOHNSON, Case No.: 19cv1673-LAB(KSC)

12 Petitioner, ORDER RE PETITIONER'S 13 v. REQUEST FOR APPOINTMENT OF COUNSEL [Doc. No. 3.] 14 MARION SPEARMAN, Warden, 15 Respondent. 16 17 Petitioner David Leonard Johnson, a state prisoner proceeding pro se, has filed a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court is a 19 one-sentence request by petitioner that was filed along with his Petition stating he is an 20 “indigent inmate and is requesting appointment of counsel.” [Doc. No. 3.] 21 An indigent’s right to appointed counsel has been recognized to exist “only where 22 the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. 23 Department of Social Services of Durham County, N. C., 452 U.S. 18, 25 (1981). District 24 Courts generally lack authority to require counsel to represent indigent prisoners in 25 habeas cases. Mallard v. U.S. Dist. Court, 490 U.S. 296, 298 (1989). However, in 26 certain “exceptional circumstances,” the Court may request the voluntary assistance of 27 counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 28 / / / 1 “A finding of exceptional circumstances requires an evaluation of both the 2 likelihood of success on the merits and the ability of the petitioner to articulate his claims 3 pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 4 (internal citations omitted). “Neither of these factors is dispositive and both must be 5 viewed together before reaching a decision.” Id. (internal citation omitted). 6 Based on the information before the Court, there is currently no basis to support a 7 finding of exceptional circumstances. First, the record is not developed enough for the 8 Court to determine the likelihood of success on the merits. 9 Second, a pro se prisoner’s inability to afford an attorney, standing alone, is not 10 enough to show exceptional circumstances. This and other hardships imposed by 11 plaintiff’s incarceration “are difficulties which any litigant would have in proceeding pro 12 se; they do not indicate exceptional factors.” Wood v. Housewright, 900 F.2d 1332, 13 1335–1336 (9th Cir. 1990). 14 Third, there is nothing from which the Court could conclude plaintiff lacks the 15 ability to articulate and prosecute his claims pro se. The allegations in the Petition are 16 clearly stated. [Doc. No. 1, at pp. 1-63.] Several exhibits are attached to the Petition to 17 assist the Court in evaluating plaintiff’s claims. [Doc. No. 1, at pp. 18-64.] Thus far, 18 plaintiff has shown an ability to effectively articulate his claims and communicate with 19 the Court in this action. 20 Fourth, the allegations in the Petition are not novel or complex. Plaintiff alleges 21 insufficiency of the evidence and instructional error. [Doc. No. 1, at pp. 1-64.] 22 Finally, pro se litigants are afforded some leniency to compensate for their lack of 23 legal training. “In civil rights cases where the plaintiff appears pro se, the court must 24 construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” 25 Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003) (internal citation omitted). This also 26 applies to motions. Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). 27 Accordingly, plaintiff’s pro se status will be taken into consideration by the Court when 28 his filings are reviewed. 1 Based on the foregoing, IT IS HEREBY ORDERED that plaintiff's Request for 2 || Appointment of Counsel is DENIED. [Doc. No. 3.] 3 IT IS SO ORDERED. 4 Dated: November 1, 2019 4 Z )

6 Hon. Karen S. Crawford United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28