(HC)Uhuru v. The People of the State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO E. UHURU, Case No.: 21-cv-01058-CAB-JLB 12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 ROBERT BURTON, Warden, 15 Respondent. [ECF Nos. 16; 18] 16 17 Before the Court is Petitioner Kohen Diallo E. Uhuru’s Motion for Appointment of 18 Counsel (ECF No. 16) and supplemental memorandum of points and authorities in support 19 of the motion (“supplemental P&A”) (ECF No. 18). Petitioner is a state prisoner 20 proceeding pro se and in forma pauperis on a Petition for Writ of Habeas Corpus filed 21 pursuant to 28 U.S.C. § 2254. (ECF Nos. 11; 12.) For the reasons set forth below, 22 Petitioner’s Motion for Appointment of Counsel is DENIED without prejudice. 23 I. LEGAL STANDARD 24 The Sixth Amendment right to counsel does not extend to federal habeas corpus 25 actions filed by state prisoners. McCleskly v. Zant, 499 U.S. 467, 495 (1991). Petitioners 26 do not have an absolute right to counsel for habeas corpus actions. Knaubert v. Goldsmith, 27 791 F.2d 722, 728 (9th Cir. 1986). Nevertheless, by statute, district courts have discretion 28 to appoint counsel in habeas proceedings for “any person financially unable to obtain 1 adequate representation” when “the interests of justice so require.” 18 U.S.C. 2 § 3006A(a)(2)(B); see also Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) 3 (“Indigent state prisoners applying for habeas corpus relief are not entitled to appointed 4 counsel unless the circumstances of a particular case indicate that appointed counsel is 5 necessary to prevent due process violations.”). Whether or not to appoint counsel is a 6 matter left to the court’s discretion, unless an evidentiary hearing is necessary. Knaubert, 7 791 F.2d at 729–30. 8 A court may exercise its discretion and appoint counsel for an indigent petitioner 9 only under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 10 1991). “A finding of exceptional circumstances requires an evaluation of both ‘the 11 likelihood of success on the merits and the ability of the petitioner to articulate his claims 12 pro se in light of the complexity of the legal issues involved.’ Neither of these factors is 13 dispositive and both must be viewed together before reaching a decision.” Id. (quoting 14 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 15 II. DISCUSSION 16 In his motion, Petitioner represents that he requires the assistance of counsel for three 17 reasons: he is incarcerated, indigent, and has an “ongoing mental illness” that renders him 18 “completely perplexed and discombobulated.” (ECF No. 16 at 1.) These reasons, 19 however, do not amount to exceptional circumstances warranting appointment of counsel. 20 Petitioner’s incarceration and inability to afford counsel are hardships that every 21 incarcerated litigant proceeding in forma pauperis on a § 2254 petition faces. See West v. 22 Dizon, No. 2:12–cv–1293 DAD P, 2014 WL 114659, at *4 (E.D. Cal. Jan. 9, 2014) 23 (“Circumstances common to most prisoners . . . do not establish exceptional circumstances 24 that would warrant a request for voluntary assistance of counsel.”). Further, Petitioner’s 25 argument concerning his mental illness is unavailing at this time. Although Petitioner is 26 currently housed at California Health Care Facility (“CHCF”), Petitioner’s motion does 27 not specify what mental illness he currently suffers from and provides very little about how 28 his mental illness affects his ability to proceed pro se, stating only that his mental illness is 1 “ongoing” and leaves him “completely perplexed and discombobulated.” In his 2 supplemental P&A, Petitioner briefly mentions that there is “pre-existing evidence” that 3 he was “shot through the head,” “beaten in the head with a baseball bat,” and “sexually 4 traumatized by Ku Klux Klan adults at age [five]” and that he has suffered from PTSD, 5 substance abuse, alcoholism, and “post slavery trauma syndrome” due to his time in the 6 military. (ECF No. 18 at 5). However, Petitioner does not explain how any of these events 7 or illnesses presently affect his ability to prosecute this case without counsel. 8 A review of the Amended Petition and the documents attached to it provides little 9 additional insight into what mental illness(es) Petitioner currently suffers from and how his 10 ability to proceed pro se is affected. For example, the Amended Petition contains the same 11 allegations that Petitioner was “shot through the head,” “beat[en] in the head with a 12 baseball bat,” and “sexually traumatized at [five] years old by Ku Klux Klan adults” and 13 additional allegations that Petitioner has experienced “suicidal ide[ation] with nervous 14 breakdown from lack of mental health treatment and substance abuse treatment” and 15 “deprogramming from being in religious cults.” (ECF No. 12 at 8.) In a Notice of Appeal 16 After Guilty Plea dated May 29, 2000, Petitioner described his mental illness as a “history 17 of voices, evils spirits, [and] working three jobs for twelve years under duress.” (Id. at 62.) 18 In an Application for Commutation of Sentence dated December 25, 2018, Petitioner stated 19 that his mental illness was due to “negative stigma while enduring tremendous stress from 20 a religious cult, working three jobs for [twenty-five] years, and failing to take psych[iatric] 21 med[ications].” (Id. at 74.) A letter dated June 5, 2020, from the Executive Director of 22 CHCF provides that Petitioner wrote to her with a request to transfer to Napa State Hospital 23 because he was not receiving “professional mental health treatment” at CHCF. (Id. at 89.) 24 On July 1, 2020, Petitioner wrote to Napa State Hospital requesting a transfer and treatment 25 for PTSD, OCD, bipolar-manic depression, paranoid schizophrenia, and “post slavery 26 trauma syndrome.” (Id. at 90.) 27 Although the Amended Petition and attached documents provide further indication 28 that Petitioner may suffer from one or more mental illnesses, Petitioner has not provided 1 any objective evidence, such as medical records, that demonstrates a current inability to 2 proceed without the help of counsel. See West, 2014 WL 114659, at *4 (“An incapacitating 3 mental disability may be grounds for appointment of counsel in some cases, but a plaintiff 4 making that argument must present substantial evidence of incompetence.”); e.g., Meeks v. 5 Nunez, No. 13cv973-GPC(BGS), 2017 WL 476425, at *3 (S.D. Cal. Feb. 6, 2017) (denying 6 appointment of counsel because the prisoner plaintiff merely alleged a mental disability 7 without any evidence detailing its nature or effects). Moreover, even if Petitioner presently 8 suffers from one or more mental illnesses, he has successfully litigated this case to date. 9 After receiving the Court’s first sua sponte screening order, Petitioner was able to 10 understand the order and survive a second screening after amending his petition to include 11 a proper respondent. (See ECF Nos. 11; 12.) Nothing in the record before the Court 12 indicates that Petitioner cannot articulate his claims and prosecute the case without counsel. 13 Additionally, Petitioner makes no persuasive argument concerning his likelihood of 14 success on the merits of his petition.1 Petitioner’s supplemental P&A2 merely repeats 15 arguments made in the Amended Petition, and a review of the limited3 record supports the 16 conclusion that the interests of justice do not at this time require appointment of counsel 17 based on any likelihood of Petitioner’s success. 18 III. CONCLUSION 19 Petitioner has not shown that he is presently unable to litigate his claims pro se, nor 20 that the Amended Petition is likely to succeed. Accordingly, the Court finds that 21 22 1 Petitioner appears to raise the following grounds in his Amended Petition: (1) he is 23 entitled to resentencing pursuant to California Penal Code § 1170.95; (2) his change of plea 24 was coerced; and (3) his rights under People v. Harvey (1979) 25 Cal.3d 754 have been violated. (See ECF No. 12 at 5, 7.) 25 2 The supplemental P&A also focuses on several allegations that appear to fall under 26 42 U.S.C. § 1983. (See ECF No. 18 at 5–7.) These claims, therefore, are not at issue in this 28 U.S.C. § 2254 action. 27 3 Respondents have not yet filed a response to the Amended Petition, and as such, 28 have not yet lodged any state court filings for the Court’s review. 1 |/exceptional circumstances warranting appointment of counsel do not currently exist. 2 || Petitioner’s Motion for Appointment of Counsel (ECF No. 16) is therefore DENIED. This 3 || denial, however, is without prejudice to Petitioner setting forth exceptional circumstances 4 || subsequently in this proceeding. 5 IT IS SO ORDERED. 6 ||Dated: August 19, 2021 - bande 7 g it Jill L. Burkhardt 9 ited States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28