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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Thomas White, Petitioner, 11 12 13 14 vs. Sandra White, et al., Respondents. ) ) ) ) ) ) ) ) ) ) No. CV-10-2495-PHX-PGR (9th Cir. No. 11-16048) ORDER 15 16 The Court enter its judgment (Doc. 18) dismissing the petitioner’s habeas 17 petition, filed pursuant to 28 U.S.C. § 2254, on April 19, 2011. The petitioner, in a 18 combined document, filed his notice of appeal (Doc. 19) and his pending Motion 19 for Counsel (Doc. 20) on April 25, 2011. 20 The filing of a notice of appeal generally confers jurisdiction on the court of 21 appeals and divests the district court of jurisdiction, except, in relevant part, to the 22 extent that the district court retains jurisdiction to act in aid of the appeal. Since 23 the Court construes the plaintiff’s motion as seeking the appointment of counsel 24 to aid him in prosecuting his appeal, the Court concludes that it has the authority 25 to rule on the motion. 26 While there is no constitutional right to appointed counsel in a civil action, 1 the Court may request counsel to represent an indigent litigant under 28 U.S.C. 2 § 1915(e)(1) if it is persuaded that there are “exceptional circumstances” to do so, 3 which requires that the Court take into account the plaintiff’s likelihood of success 4 on the merits of his action and his ability to articulate his claims pro se in light of 5 the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 1015, 6 1017 (9th Cir.1991). 7 Having reviewed the plaintiff’s motion in light of the record of this action, 8 the Court finds that the motion should be denied. The Court cannot conclude that 9 the required exceptional circumstances exist because the plaintiff has not 10 demonstrated any sufficient likelihood of success on appeal or that his action is 11 now so complex that he cannot continue to prosecute it on his own. Therefore, 12 IT IS ORDERED that the plaintiff’s Motion for Counsel (Doc. 20) is denied. 13 DATED this 20th day of June, 2011. 14 15 16 17 18 19 20 21 22 23 24 25 26 -2-

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