Lewis v. Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD R. LEWIS Case No.: 20cv1042-MMA (MSB)

12 Petitioner, ORDER DENYING PETITIONER’S THIRD 13 v. MOTION FOR APPOINTMENT OF COUNSEL WITHOUT PREJUDICE 14 KATHLEEN ALLISON, Secretary of the California Department of Corrections and 15 [ECF NO. 34] Rehabilitation, 16 Respondent. 17 18 19 After the Court dismissed his first filing as inadequate, Petitioner, a pro se 20 prisoner, file a Petition for Writ of Habeas Corpus attacking his state court criminal 21 conviction pursuant to 28 U.S.C. § 2254 on June 25, 2020. (See ECF Nos. 1-3.) 22 Now pending before the Court is Petitioner’s motion asking the Court to appoint 23 counsel, filed on June 16, 2021. (See ECF No. 34; see also ECF No. 31.) This motion 24 follows the Court’s Orders on August 7 and September 1, 2020, denying Petitioner’s 25 prior motions for appointment of counsel. (See ECF Nos. 8, 13.) Both prior motions 26 were filed before Respondents filed any responsive document to the petition and before 27 Petitioner raised his mental disability as a basis for equitable tolling in response to 2 untimely. (ECF No. 11.) Petitioner filed an Amended Petition, removing the 3 unexhausted claims and asserting that any late filing of the remaining instructional error 4 claim should be equitably tolled because of Petitioner’s mental disability. (ECF Nos. 17, 5 24.) He supported his claim of mental disability with the trial testimony of a 6 neuropsychologist and the declarations of two inmates who assisted him in the litigation 7 of his case. (ECF No. 17 at 26-77.) 8 Very similar to Petitioner’s prior motions, Petitioner now claims that appointment 9 of counsel is justified because he “suffers from a mental disability, and is unable to 10 proceed alone.” (ECF No. 34 at 1.) However, it is distinguished from the early motions 11 because intervening briefing and exhibits in support of Petitioner’s opposition to 12 Respondent’s motion to dismiss as untimely provide substantially more context to 13 Petitioner’s instant request for counsel. (See, e.g., ECF No. 17.) Additionally, referring 14 to this Court’s Report and Recommendation regarding Respondents’ Motion to Dismiss, 15 the instant motion argues that the appointment of counsel is warranted due to 16 Petitioner’s anticipated transfer, which will prevent the inmate who assisted with 17 Petitioner’s habeas petition from assisting Petitioner with a possible future requirement 18 that Petitioner expand the record regarding his claim for equitable tolling. (Id. at 2; see 19 also ECF No. 17 at 77.) As anticipated, it appears Petitioner was transferred from High 20 Desert State Prison to San Quentin State Prison after the instant motion was filed. (See 21 ECF No. 35.) 22 I. LEGAL STANDARD 23 The Sixth Amendment right to counsel does not extend to federal habeas corpus 24 actions by state prisoners. Habeas Corpus Res. Ctr. v. U.S. Dep’t of Justice, 816 F.3d 25 1241, 1244 (9th Cir. 2016) (noting that there is no federal constitutional right to 26 appointment of counsel in postconviction collateral attacks on a conviction or sentence 27 in state or federal court). Courts may, however, appoint counsel for financially eligible 2 (9th Cir. 2015) (citing 18 U.S.C. § 3006A(a)(2)(B)). “Indigent state prisoners applying for 3 habeas corpus relief are not entitled to appointed counsel unless the circumstances of a 4 particular case indicate that appointed counsel is necessary to prevent due process 5 violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted). 6 Courts have discretion in determining whether to appoint counsel unless an evidentiary 7 hearing is necessary, then counsel must be appointed. See Terrovona v. Kincheloe, 912 8 F.2d 1176, 1177 (9th Cir. 1990); Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 9 1986) (citation omitted). “Where issues involved can be properly resolved on the basis 10 of the state court record, a district court does not abuse its discretion in denying a 11 request for court-appointed counsel.” Hoggard v. Purkett, 29 F.3d 469, 471 (9th Cir. 12 1994) (internal citation omitted). 13 Under 28 U.S.C. § 1915(e)(1), courts may exercise their discretion to appoint 14 counsel for indigent civil litigants only in “exceptional circumstances.” Agyeman v. Corr. 15 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 16 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 17 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 18 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 19 789 F.2d 1328, 1331 (9th Cir. 1986)). Both factors must be reviewed before deciding 20 whether to appoint counsel, and neither factor is individually dispositive. Wilborn, 789 21 F.2d at 1331. 22 II. DISCUSSION 23 The Court finds that Petitioner has not established the required exceptional 24 circumstances for appointment of counsel. Despite his claimed limited intellectual 25 ability, Petitioner has sufficiently represented himself to date. Albeit with the assistance 26 of others, Petitioner has submitted the Petition for Writ of Habeas Corpus [ECF No. 3], a 27 motion for extension of a filing deadline [ECF No. 14], an amended habeas petition [ECF 2 appointment of counsel [ECF Nos. 7, 10, 34]. Petitioner’s filings indicate that he has so 3 far been able to articulate the basis of his Petition and litigate it. See LaMere v. Risley, 4 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for 5 appointment of counsel, where pleadings demonstrated petitioner had “a good 6 understanding of the issues and the ability to present forcefully and coherently his 7 contentions.”); see also Taa v. Chase Home Fin., No. 5:11–CV–00554 EJD, 2012 WL 8 507430, at *2 (N.D. Cal. Feb. 15, 2012) (noting a pro se litigant’s lack of legal training 9 and poverty do not constitute exceptional circumstances, because many other litigants 10 face similar difficulties when proceeding pro se). 11 Further, while the extent of Petitioner’s cognitive impairment is not currently 12 resolved, (see ECF No. 28 at 20-21), the record at this point indicates that appointment 13 of counsel is not necessary to protect Petitioner’s due process rights. Courts are 14 required to construe a petition filed by a pro se litigant more liberally than a petition 15 drafted by counsel. See Knaubert, 791 F.2d at 729. “The district court must scrutinize 16 the state court record independently to determine whether the state court procedures 17 and findings were sufficient.” Id. (citations omitted). This Court must also render 18 independent legal conclusions. Id. Petitioner’s sole habeas claim alleges that the Court 19 gave improper jury instructions, (see ECF No. 17), a claim the Court can evaluate based 20 on the law and the state court record. While Petitioner is correct that the Court has 21 “tentatively implied it may request Parties” to “expand the record,” it is uncertain 22 whether such expansion will require an evidentiary hearing or be necessary at all. (ECF 23 No. 34 at 2; ECF No 28 at 19-21.) The need for expansion of the record will incur only if 24 the Court favorably resolves Petitioner’s habeas claim on the merits, at which point 25 equitable tolling would become relevant. (See ECF No. 28 at 19-21.) Therefore, 26 Petitioner’s need for assistance developing the factual record is speculative at this point. 27 For the foregoing reasons, the Court again finds that the appointment of counsel 1 Ill. CONCLUSION 2 The Court DENIES Plaintiff's motion for appointment of counsel without 3 || prejudice. The Court would reconsider this ruling if further expansion of the factual A ||record is required or if the need for counsel to protect Petitioner’s right to due process 5 appears from the Court’s review of the relevant law and the state court record. 6 e.g., Martinez v. Beard, Civil No. 13-CV-1457-BTM (WVG), 2015 WL 2384129, at *6 7 Cal. May 19, 2015) (denying appointment of counsel because the interests of 8 || justice did not compel counsel where there was no evidentiary hearing and the court 9 || would independently review the record and render a legal conclusion). 10 IT IS SO ORDERED. 11 Dated: July 13, 2021 = _ 2 FF B Honorable Michael S. Berg United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28