White v. Walker et al

Filing 23

ORDER denying 20 Plaintiff's Motion to Appoint Counsel. Signed by Judge Paul G Rosenblatt on 6/20/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas White,
Petitioner,

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vs.
Sandra White, et al.,
Respondents.

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No. CV-10-2495-PHX-PGR
(9th Cir. No. 11-16048)
ORDER

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The Court enter its judgment (Doc. 18) dismissing the petitioner’s habeas

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petition, filed pursuant to 28 U.S.C. § 2254, on April 19, 2011. The petitioner, in a

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combined document, filed his notice of appeal (Doc. 19) and his pending Motion

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for Counsel (Doc. 20) on April 25, 2011.

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The filing of a notice of appeal generally confers jurisdiction on the court of

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appeals and divests the district court of jurisdiction, except, in relevant part, to the

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extent that the district court retains jurisdiction to act in aid of the appeal. Since

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the Court construes the plaintiff’s motion as seeking the appointment of counsel

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to aid him in prosecuting his appeal, the Court concludes that it has the authority

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to rule on the motion.

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While there is no constitutional right to appointed counsel in a civil action,

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the Court may request counsel to represent an indigent litigant under 28 U.S.C.

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§ 1915(e)(1) if it is persuaded that there are “exceptional circumstances” to do so,

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which requires that the Court take into account the plaintiff’s likelihood of success

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on the merits of his action and his ability to articulate his claims pro se in light of

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the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir.1991).

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Having reviewed the plaintiff’s motion in light of the record of this action,

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the Court finds that the motion should be denied. The Court cannot conclude that

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the required exceptional circumstances exist because the plaintiff has not

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demonstrated any sufficient likelihood of success on appeal or that his action is

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now so complex that he cannot continue to prosecute it on his own. Therefore,

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IT IS ORDERED that the plaintiff’s Motion for Counsel (Doc. 20) is denied.

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DATED this 20th day of June, 2011.

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