Harrington v. Covello

Opinion

1 2 3 4 5 6 8 ~ UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} STEVE HARRINGTON, Case No.: 3:19-cv-1824-LAB-RBM 2 Pettonet;| ORDER DENYING MOTION FOR 13 || V. APPOINTMENT OF COUNSEL 14 || PATRICK COVELLO, Warden, 15 || Respondent. [Doc. 11] 16 17 I. INTRODUCTION 18 Petitioner Steve Harrington (“Petitioner”), a prisoner proceeding pro se and in forma 19 || pauperis on a Petition for Writ of Habeas Corpus (the “Petition”), filed a “Request for 20 ||Extension of Time to Amend and Appointment of Counsel.” (Doc. 11 at 7-8.) Petitioner 21 |jincluded this request within his Opposition to Respondent Patrick Covello’s 22 ||(“Respondent”) Motion to Dismiss the Petition. (/d. at 1-6.) Combining an opposition 23 brief and a motion within the same filing violates Civil Local Rule 5.1(m). See □□□□□□ 24 |/5.1(m) (stating, “[a]ll documents submitted for filing must be filed and captioned 25 ||separately.”) (emphasis added). Nonetheless, pro se litigants are relieved from “strict 26 || application of procedural rules.” See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 27 ||2013). Liberally construing Petitioner’s filing, it is construed as a Motion for Appointment 28 1 |lof Counsel (“Motion’”).! See Knaubert v. Goldsmith, 791 F.2d 722, 729 (9th Cir. 1986) 2 (stating, “[t]he procedures employed by the federal courts are highly protective of a pro se 3 || petitioner’s rights. The district court is required to construe a pro se petition more liberally 4 it would construe a petition drafted by counsel.”) (citations omitted). For the reasons 5 || discussed below, Petitioner’s Motion is DENIED. 6 Il. BACKGROUND 7 According to the Petition, Petitioner was convicted of first-degree burglary and 8 ||sentenced in the San Diego County Superior Court. (Doc. 1 at 1 (citing San Diego Cnty. 9 || Super. Ct. Case No. SCD216977); Doc. 7-1 Ex. 1, at 10-11.) The California Court of 10 || Appeal affirmed Petitioner’s judgment of conviction. (Doc. 1 at 2-3 (citing Cal. Ct. App. 11 Case No. D056964); Doc. 7-1 Ex. 2, at 15-20.) Petitioner alleges he filed a petition with 12 California Supreme Court to review the court’s decision, but he did not indicate a result 13 |/or list a case number. (Doc. | at 3.) On May 2, 2019, the California Court of Appeal 14 || denied Petitioner’s habeas petition. (/d. at 3-4 (citing Cal. Ct. App. Case No. HC21267).) 15 May 31, 2019, Petitioner filed a petition for writ of habeas corpus in the California 16 Supreme Court. (/d. at 4 (citing Cal. Case No. $256097).) The California Supreme Court 17 || denied the petition. (/d.) 18 On September 20, 2019, Petitioner filed the Petition in this Court. (Doc. 1.) 19 || Liberally construing the Petition, Petitioner has two contentions: (1) he is eligible for early 20 || parole consideration under Proposition 57 (“Prop 57”) of the California Constitution; and 21 the California Department of Corrections and Rehabilitation erred in excluding 22 Petitioner from Prop 57 early parole in violation of the Equal Protection Clause of the 23 || Fourteenth Amendment. (Doc. | at 5-6); CAL. CONST. art. I, § 32, subd. (a)(1); U.S. □□□□□□ 24 ||amend. XIV, § 1. On January 28, 2020, Respondent filed a Motion to Dismiss for failure 25 26 ! As to Petitioner’s “request for extension of time to amend,” the undersigned addresses this request in a 27 || contemporaneously-filed Report and Recommendation of U.S. Magistrate Judge re: Respondent’s 28 Motion to Dismiss and Petitioner’s Motion to Amend Petition. Thus, the only issue before the Court is Petitioner’s Motion for Appointment of Counsel.

1 ||to state a claim. (Doc. 7.) As state above, Petitioner filed an Opposition to the Motion to 2 || Dismiss and combined the instant Motion within those papers. (Doc. 11.) 3 Til. APPLICABLE LAW 4 The Sixth Amendment right to counsel does not extend to federal habeas corpus 5 |/actions by state prisoners. See Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987) 6 (stating, “we have never held that prisoners have a constitutional right to counsel when 7 ||mounting collateral attacks upon their convictions . . . the right to appointed counsel 8 extends to the first appeal of right, and no further.”); e.g., Chaney v. Lewis, 801 F.2d 1191, 9 || 1196 (9th Cir. 1986). Financially eligible habeas petitioners seeking relief under 28 U.S.C. 10 2254 may obtain representation whenever the court “determines that the interests of 11 justice so require.” 18 U.S.C. § 3006A(a)(2)(B); e.g., Terrovona v. Kincheloe, 912 F.2d 12 ||1176, 1181 (9th Cir. 1990). The interests of justice require appointment of counsel when 13 court conducts an evidentiary hearing on the petition or utilizes the discovery process. 14 || See Terrovona, 912 F.2d at 1177, 1182; see also Rules 6(a) & 8(c), Rules Governing 28 15 |/U.S.C. § 2254 Cases (amend. Dec. 1, 2019). Otherwise, appointment of counsel is 16 |\discretionary. See Terrovona, 912 F.2d at 1177. 17 Prisoners “applying for habeas relief are not entitled to appointed counsel unless the 18 circumstances of [the] case [require appointment] to prevent due process violations.” 19 || Chaney, 801 F.2d at 1196 (citations omitted). Appointing counsel is within the court’s 20 || discretion; in deciding appointment of counsel, the court “must evaluate the likelihood of 21 ||success on the merits as well as the ability of the petitioner to articulate his claims pro se 22 light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 23 (9th Cir. 1983); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). In 24 |\addition, appointment of counsel may be necessary if the petitioner has such limited 25 || education that they are incapable of presenting their claims. Hawkins v. Bennett, 423 F.2d 26 948, 950 (8th Cir. 1970). 27 28 1 IV. DISCUSSION 2 Here, appointment of counsel is unwarranted. First, the interests of justice do not 3 |lrequire appointment of counsel. The record is adequately developed: no evidentiary 4 ||hearing or use of the discovery process is warranted nor expected. See Terrovona, 912 5 at 1177, 1182. As noted in Knaubert, “unless an evidentiary hearing is held, an 6 |{attorney’s skill in developing and presenting new evidence is largely superfluous; the 7 || district court [may] rely on the state court record alone.” 791 F.2d at 729 (citation omitted). 8 || Presently, there is no indication an attorney would present additional compelling arguments 9 || or facts, so appointment is unwarranted. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 10 || 1987). 11 Likewise, the circumstances of this case do not require appointment of counsel to 12 || prevent a due process violation. Chaney, 801 F.2d at 1196 (citations omitted). Petitioner 13 ||has not demonstrated an inability to present his claims. Rather, Petitioner has sufficiently 14 ||represented himself to date and appears to grasp the issues and facts of his case. In fact, 15 ||the Petition was pleaded sufficiently to warrant this Court’s Order Requiring a Response 16 the Petition. (Doc. 5.) Moreover, Petitioner has not asserted mental incapacity or 17 extreme complexity of legal issues. Petitioner included within his filing a declaration from 18 inmate who assisted him with his papers. (Doc. 11 at 8.) The inmate declared that he 19 || assisted Petitioner, because “the law library has no paralegal assistant and fails to provide 20 || proper assistance to” indigent inmates. (U/d.) But as mentioned, Petitioner appears capable 21 || of presenting his arguments, and there is no indication an attorney would present additional 22 ||compelling arguments. See LaMere, 827 F.2d at 626. 23 The Motion cites the “Massiah Doctrine” to support Petitioner’s argument. (Doc. 24 11 at 7-8 (citing Massiah v. U.S., 377 U.S. 201 (1964).) In Massiah, the Court held the 25 ||government violated petitioner’s rights by eliciting and using incriminating statements 26 || post-indictment and in the absence of counsel. (/d. at 206.) Here, Petitioner does not assert 27 || any pre-trial issues, incriminating statements used against him, or any explanation as to the 28 1 || applicability of Massiah in post-conviction habeas cases. (Doc. 11 at 7-8.) The issues in 2 || Massiah are not present here, therefore Massiah is inapplicable. 3 As to financial eligibility for appointment of counsel, it is possible Petitioner is 4 eligible. Petitioner has shown enough to proceed in forma pauperis and is likely financially 5 eligible should appointment be warranted. (Docs. 3-4.) But even liberally construing the 6 || Petition, the Court does not find appointment of counsel is warranted for the reasons 7 || outlined above. 8 In sum, the record is adequately developed. Petitioner’s mental incapacity is not at 9 |jissue. Nor is there extreme complexity of legal issues. Rather, Petitioner has demonstrated 10 |/an ability to present his claims pro se. In light of all of the foregoing, appointment of 11 counsel is not warranted at this time. 12 Vv. CONCLUSION 13 For the foregoing reasons, Petitioner’s Motion is DENIED, without prejudice. 14 || DATE: June 17, 2020 15 16 pe Bernusde Tepilireyso 7 N. RUTH BE Z MONTENEGRO UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 : 25 . 26 27 28