Clark v. Ryan et al

Filing 28

ORDER denying 24 Petitioner's "Motion Requesting to Have an Attorney Assign [sic] to My Case, Represent Me in Court." Signed by Magistrate Judge Eileen S Willett on 4/12/2018. (ATD)

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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 Thomas Clark, Petitioner, 10 11 ORDER v. 12 No. CV-17-03105-PHX-DGC (ESW) Charles L Ryan, et al., 13 Respondents. 14 15 16 Petitioner Thomas Clark, who is confined in the Arizona State Prison-Kingman, 17 filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 18 (Doc. 19) which the Court ordered the Government to answer. (Doc. 20 at 4). On March 19 19, 2018, Petitioner filed a second “Motion Requesting to Have an Attorney Assign [sic] 20 to My Case, Represent Me in Court” (Doc. 24). Petitioner requests the appointment of 21 counsel because Petitioner (i) is not educated in the law, (ii) is indigent, and (iii) needs to 22 conduct discovery. 23 There is no constitutional right to the appointment of counsel in a civil case. See 24 Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991); Ivey v. Bd of 25 Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In pro se and in forma 26 pauperis proceedings, district courts do not have the authority “to make coercive 27 appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310 28 (1989). District courts, however, do have the discretion to request that an attorney 1 represent an indigent civil litigant upon a showing of “exceptional circumstances.” 28 2 U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103 3 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “Indigent state 4 prisoners applying for habeas corpus relief are not entitled to appointed counsel unless 5 the circumstances of a particular case indicate that appointed counsel is necessary to 6 prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). 7 However, the Court has discretion to appoint counsel when “the interests of justice so 8 require.” 18 U.S.C. § 3006A(a)(2)(B). 9 A determination with respect to exceptional circumstances requires an evaluation 10 of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his 11 claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these 12 factors is dispositive and both must be viewed together before reaching a decision.” Id. 13 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 14 Petitioner’s filings with the Court indicate that Petitioner is capable of navigating 15 this proceeding and presenting arguments to the Court. Having considered the likelihood 16 of success on the merits and Petitioner’s ability to articulate his claims, the Court does 17 not find that exceptional circumstances are present that would require the appointment of 18 counsel in this case. Petitioner remains in a position no different than many pro se 19 prisoner litigants. The Court does not find that the appointment of counsel is necessary to 20 prevent due process violations. Nor do the interests of justice so require appointment. 21 The Court will deny Petitioner’s “Motion Requesting to Have an Attorney Assign [sic] to 22 My Case, Represent Me in Court” (Doc. 24). If, at a later date, the Court determines that 23 an evidentiary hearing is required, the Court will appoint counsel in accordance with Rule 24 8(c) of the Rules Governing Section 2254 Proceedings. 25 For the reasons set forth herein, 26 IT IS ORDERED denying Petitioner’s “Motion Requesting to Have an Attorney 27 28 Assign [sic] to My Case, Represent Me in Court” (Doc. 24). Dated this 12th day of April, 2018. -2-

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