Moreno v. Ryan et al

Filing 14

ORDER denying without prejudice 9 Petitioner's Motion to Appoint Counsel. Signed by Magistrate Judge Lawrence O Anderson on 1/31/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Abraham Barrera Moreno,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-12-1555-PHX-PGR (LOA)
ORDER

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This matter is before the Court on Petitioner Abraham Barrera Moreno’s Motion to
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Appoint Counsel, filed on October 1, 2012. (Doc. 9) In their Response, Respondents take
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no position regarding Petitioner’s Motion. (Doc. 11) A reply was neither filed nor warranted.
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I. Background
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On July 19, 2012, Plaintiff filed a pro se Petition for a Writ of Habeas Corpus.
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(Doc.1) Petitioner was convicted upon a plea of guilty to second degree murder pursuant
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to a plea agreement and sentenced to 22 years in the Arizona Department of Corrections.
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(Doc. 4) According to records available on-line, Petitioner’s sentence will expire in 2028.
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(Id., at 1 n. 1) In his Petition, Petitioner raises two grounds for relief: 1) ineffective assistance
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of trial counsel, and 2) ineffective assistance of his post-conviction counsel, both in violation
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of his Sixth Amendment rights. Respondents were served with the Petition on September 24,
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2012. (Docs. 5 and 6) The Court granted Petitioner’s Application to Proceed In Forma
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Pauperis, doc. 2, on October 22, 2012. (Doc. 10)
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On October 1, 2012, Petitioner filed the pending Motion to Appoint Counsel. (Doc.

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9) Citing Haines v. Kerner, 404 U.S. 519 (1972), Petitioner essentially requests his pro se

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Petition and other filings be held to less stringent standards than formal pleadings drafted by

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lawyers. (Id. at 1-2) In his motion, Petitioner contends he has a “severe mental illness” and

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lacks an education which prevent him from properly presenting his case in the District Court

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of Arizona. (Id. at 2) Petitioner claims a denial of appointed counsel“would be prejudicial”

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and “seriously put in jeopardy” his “rights to due process.” (Id.)

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On October 23, 2012, the Court ordered Respondents to file a response to Plaintiff’s

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motion. (Doc. 11) Respondents filed their Answer to Petition for Writ of Habeas Corpus on

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October 31, 2012, doc. 12, and Response to Plaintiff’s Motion for Appointment of Counsel

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on November 1, 2012, doc. 13, respectively. While they take no position on Petitioner’s

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request for appointment of counsel, Respondents note Petitioner has not provided the Court

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any current evidence of his mental health issues in support of his request for appointed

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counsel. (Doc. 13 at 2) Respondents additionally state that there is no indication in

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Petitioner’s habeas petition that he is unable to understand the court proceedings or

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procedures. (Id.)

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II. Right to Counsel

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A. Criminal Cases

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In 1963, the United States Supreme Court held that the States were required by the

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Due Process Clause of the Fourteenth Amendment to furnish counsel to all indigent

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defendants charged with felonies. Gideon v. Wainwright, 372 U.S. 335 (1963). Sixteen years

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later, in Scott v. Illinois, 440 U.S. 367 (1979), the Supreme Court expanded the Sixth

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Amendment right to counsel, prohibiting the incarceration of any indigent defendant who

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is not offered appointed counsel, but only in those criminal cases in which a sentence of

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imprisonment is actually imposed. Id., 440 U.S. at 373 (actual imprisonment is “the line

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defining the constitutional right to appointment of counsel”). More recently, counsel may

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be appointed to indigent defendants charged with misdemeanors pursuant to Federal Rule

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of Criminal Procedure 44(a). See United States v. Downin, 884 F.Supp. 1474 (E.D. Cal.
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1995).

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B. Civil Cases

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Generally, “[t]here is no absolute right to counsel in civil proceedings.” Hedges v.

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Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted);

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see also United States v. Griggs, 2008 WL 4810778, at *1 (D. Ariz. Nov. 5, 2008)

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(discussing appointment of counsel for indigent litigants in civil contempt and other

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proceedings) (citations omitted). “However, a court may appoint counsel for indigent civil

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litigants under exceptional circumstances.” Ming Ching Jin v. Forgia, 362 Fed.Appx. 649,

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650 (9th Cir. 2010). Because there is no constitutional right to appointed counsel in a civil

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case, “[t]he decision to appoint counsel is left to the sound discretion of the district court.”

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Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Board of

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Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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“It is well settled that habeas corpus is a civil proceeding.” Browder v. Director, Dep’t

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of Corrections of Illinois, 434 U.S. 257, 269 (1978) (citations omitted). “[T]he Federal Rules

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of Civil Procedure apply in habeas proceedings only ‘to the extent that the practice in such

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proceedings is not set forth in statutes of the United States and has heretofore conformed to

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the practice in civil actions.’” Id. (quoting current Rule 81(a)(4), Fed.R.Civ.P.). As with most

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civil cases, “[t]he Sixth Amendment right to counsel does not extend to federal habeas

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corpus actions by state prisoners.” Salceda v. Salazar, 2009 WL 2514126, at *1 (S.D. Cal.

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Aug. 14, 2009) (citing McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Pennsylvania

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v. Finley, 481 U.S. 551, 555 (1987) (“The right to appointed counsel extends to the first

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appeal of right, and no further”)); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996)

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(noting that there currently exists no constitutional right to appointment of counsel in habeas

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proceedings); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (same).

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Although no constitutional right exists to do so, there is a statutory basis upon which

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counsel may be appointed in a non-capital federal habeas action.1 District courts may appoint

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counsel for financially eligible habeas petitioners when “the interests of justice so require.”

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18 U.S.C. § 3006A(a)(2)(B)2; Chaney, 801 F.2d at 1196. “Unless an evidentiary hearing is

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required, the decision to appoint counsel in a 28 U.S.C. § 2254 proceeding is a discretionary

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matter.” Price v. Cashell, 2007 WL 837229, at *8 (D. Mont. March 14, 2007) (citing

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Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988)). “Generally, counsel should only

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be appointed when the circumstances of the case indicate that such appointment is necessary

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to prevent a due process violation.” Id. (citation omitted). If, however, an evidentiary hearing

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is ordered, appointment of counsel is mandatory. See, e.g., Johnson v. Henry, 2009 WL

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3424195, at *1 (E.D. Cal. October 23, 2009).

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III. Discussion

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At this early juncture in this habeas action, the Court has not determined that an

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evidentiary hearing is necessary. Nevertheless, after reviewing his 14-page Petition,

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Petitioner demonstrated an ability to understand the applicable law, recited his relevant

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history and legal authority, checked the applicable and inapplicable boxes on the form

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Petitioner used, and articulated understandably how his prior lawyers’ allegedly ineffectively

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represented him.

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“In 1988, Congress enacted the legislation now known as § 3599 to govern
appointment of counsel in capital cases, thus displacing § 3006A for persons facing
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execution (but retaining that section for all others).” Martel v. Clair,
1276, 1284-85 (March 5, 2012) (discussing 18 U.S.C. § 3599).
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Title 18 U.S.C. § 3006A(a)(2)(B) provides:

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(2) Whenever the United States magistrate judge or the court determines that
the interests of justice so require, representation may be provided for any
financially eligible person who— . . .

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(B) is seeking relief under section 2241, 2254, or 2255 of title 28.

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(emphasis added).
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Petitioner’s motion is much like the issues and arguments presented in Lavery v.

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Singh, 2011 WL 5975934 (S.D. Cal. November 29, 2011). In Lavery, petitioner filed a

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motion, contemporaneously with his habeas petition, requesting, among other things, the

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appointment of counsel. Petitioner alleged that he required the assistance of counsel because

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he “suffers from various mental illnesses and deficiencies and another inmate has had to help

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him prepare his habeas filings.” 2011 WL 5975934, at *1. There, the district court found that

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petitioner’s medical records were, at least, seven years old and petitioner did not submit any

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evidence that he was currently suffering from a mental illness that prevented him from

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proceeding without counsel. Id. The court ultimately denied petitioner’s request for

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appointment of counsel because petitioner did not “present any relevant or recent evidence

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of current incompetence . . . .” Id. at *4. Cf. Derritt v. Galaza, 229 F.3d 1157, 2000 WL

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868537, at *1 (9th Cir. 2000) (denying, inter alia, Petitioner’s request for appointment of

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counsel because Petitioner’s “mere allegation that he suffers from a mental illness is

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insufficient to toll the limitations period or require an evidentiary hearing. He did not allege

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what mental disorder he suffered from, whether he suffered from that disorder during the

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limitations period, or how the disorder would have rendered him incompetent to file a timely

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habeas petition.”).

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Petitioner attached to his Petition an Arizona Rule 113 mental health evaluation, dated

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January 3, 2007, ordered by a Yuma County Superior Court judge, in which the examiner

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concluded Petitioner was “not competent to stand trial [because] he is still too psychotic to

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rationally and meaningfully assist his attorney in his own defense.” (Doc. 9, Exh. A at 13)

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This evaluation, however, is more than six years old and, most likely, there are other mental

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health reports closer in time to his guilty plea, finding Petitioner competent to proceed,

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which have not been provided to the Court as this early stage of this case. Moreover,

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Arizona Rule of Criminal Procedure 11.3(a) authorizes a trial court to order a
pretrial mental health evaluation only “[i]f the court determines that reasonable grounds for
an examination exist. . . .” See State of Arizona v. Moody, 208 Ariz. 424, 442-43, 94 P.3d
1119, 1137-38 (Ariz. 2004) (citations omitted).
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Petitioner has offered no evidence that he is currently suffering from a severe mental illness

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that prevents him from understanding the pending court proceedings.

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IV. Conclusion

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Petitioner has not established that the interests of justice at this time require the

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appointment of counsel. Whether he requested it or not, his pro se Petition and future filings

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will not be held to the higher standard expected of lawyers and will “be construed so as to

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do justice.” See Rule 8(e), Fed.R.Civ.P. Even as lawyers must, pro se Petitioner, however,

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must become familiar, and comply, with the Rules of Civil Procedure and the Rules of

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Practice for the District Court for the District of Arizona (“Local Rules”). Carter v.

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Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986). There is no reason

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at this time to believe Petitioner cannot do so. Therefore, the Court will deny Petitioner’s

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motion without prejudice and will revisit the issue if the need to so arises or a hearing is

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required.

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Accordingly,

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IT IS ORDERED that Petitioner’s Motion to Appoint to Counsel, doc. 9, is

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DENIED without prejudice.
Dated this 31st day of January, 2013.

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