Sundberg v. Wallace

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY FRITHIOF SUNDBERG, Case No.: 23-cv-1155-RBM-DDL 12 Petitioner, ORDER: 13 v. (1) DENYING AS MOOT 14 JANINE WALLACE, Executive Director, PETITIONER’S NOTICE OF et al., HOLD; 15 16 Respondents. (2) SETTING AMENDED BRIEFING SCHEDULE ON 17 HABEAS PETITION; 18 and 19 (3) DENYING PETITIONER’S 20 SECOND MOTION TO APPOINT COUNSEL 21 [Dkt. Nos. 6, 11] 22 23 Petitioner’s Notice of Hold (Dkt. No. 6) 24 On August 1, 2023, Petitioner Kelly Frithiof Sundberg (“Petitioner”) filed a 25 document captioned “Notice of Hold” [Dkt. No. 6] (“Notice”) wherein Petitioner states 26 that an attorney advised him that the petition for writ of habeas corpus (“Petition”) in the 27 instant matter “should be placed on hold until the matter is resolved, first in the higher 28 court.” Dkt. No. 6 at 1. Petitioner references Case No. 23-5025 pending before the 1 Supreme Court of the United States, which is a petition for a writ of certiorari seeking 2 review of a decision issued by the California Court of Appeal, Fourth Appellate District 3 (“Court of Appeal”), on February 17, 2023 (Case No. D080500). Based on the information 4 provided, the Court construed the Notice as a request to stay proceedings in the instant 5 matter pending resolution of the Supreme Court case. See Dkt. No. 7. 6 On August 30, 2023, pursuant to this Court’s Order, Respondents filed a response 7 opposing Petitioner’s Notice and detailing the procedural history and other information 8 regarding the Supreme Court case. Dkt. No. 8. Respondents noted that Petitioner’s petition 9 pending before the Supreme Court “is scheduled for consideration on September 26, 2023.” 10 Id. at 2. 11 On October 2, 2023, the Supreme Court denied the petition. Because the sole ground 12 Petitioner asserted in support of his request for a stay of the instant matter is no longer at 13 issue, the relief requested in the Notice of Hold is DENIED AS MOOT. 14 Order Setting Amended Briefing Schedule on Habeas Petition 15 The Court previously ordered Respondents to file a response to the Petition by 16 September 15, 2023, and ordered Petitioner to file an opposition or traverse by October 16, 17 2023. Dkt. No. 4. The Court hereby AMENDS the briefing schedule as follows: 18 1. Respondent shall file a motion to dismiss or an answer by not later than October 19 23, 2023. 20 2. If Respondent files a motion to dismiss, Petitioner must file his opposition, if any, 21 to the motion by not later than November 13, 2023. 22 3. If Respondent files an answer, Petitioner may file a traverse to matters raised in 23 the answer by not later than November 13, 2023. 24 All other directives and orders set forth in the Order at Dkt. No. 4 remain unchanged. 25 Petitioner’s Second Motion to Appoint Counsel (Dkt. No. 11) 26 “In deciding whether to appoint counsel in a habeas proceeding, the district court 27 must evaluate the likelihood of success on the merits as well as the ability of the petitioner 28 to articulate his claims pro se in light of the complexity of the legal issues involved.” 1 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). In the Ninth Circuit, 2 “[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel 3 unless the circumstances of a particular case indicate that appointed counsel is necessary 4 to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 5 Knaubert v. Goldsmith, 791 F.2d 722, 728-29 (9th Cir. 1986). However, “[t]he procedures 6 employed by the federal courts are highly protective of a pro se petitioner’s rights [and] 7 [t]he district court is required to construe a pro se petition more liberally than it would 8 construe a petition drafted by counsel.” Knaubert, 791 F.2d at 729 (citing Haines v. 9 Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per 10 curiam)). 11 On September 19, 2023, Petitioner filed his second motion to appoint counsel. Dkt. 12 No. 11; see Dkt. No. 2. This Court denied Petitioner’s first motion to appoint counsel on 13 the grounds that (a) Petitioner has sufficiently represented himself to date based on the 14 finding that his Petition was sufficient to warrant this Court’s order directing Respondents 15 to file a response to the Petition, and (b) it was too early in the proceedings to determine 16 Petitioner’s likelihood of success on the merits. Dkt. No. 4 at 2-3. 17 The Court reaffirms its finding that Petitioner has sufficiently represented himself to 18 date. Moreover, the Court concludes that Petitioner is unlikely to succeed on the merits 19 because his Petition, which does not challenge the fact or duration of his confinement and 20 only seeks to compel the Court of Appeal to independently review the record, does not lie 21 “at the core of habeas corpus.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); see Skinner 22 v. Switzer, 562 U.S. 521, 525 (2011) (quoting Dotson, 544 U.S. at 82) (“Habeas is the 23 exclusive remedy . . . for the prisoner who seeks ‘immediate or speedier release’ from 24 confinement. Where the prisoner’s claim would not ‘necessarily spell speedier release,’ 25 however, suit may be brought under § 1983.”); see also Nettles v. Grounds, 830 F.3d 922, 26 927 (9th Cir. 2016) (“[A] § 1983 action is the exclusive vehicle for claims brought by state 27 prisoners that are not within the core of habeas corpus.”). Even if the Petition is granted 28 such that the Court of Appeal is compelled to independent review the record, it may still 1 || find that Petitioner is not entitled to conditional release from confinement. Because the 2 ||relief Petitioner requests does not implicate his release from confinement, the Court 3 concludes that Petitioner is unlikely to succeed on the merits. Accordingly, Petitioner’s 4 ||second motion to appoint counsel is DENIED. 5 IT IS SO ORDERED. 6 || Dated: October 3, 2023 ae 7 Tbe! Lh, a 9 United States Magistrate Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28