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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Clark,
Petitioner,

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ORDER

v.

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No. CV-17-03105-PHX-DGC (ESW)

Charles L Ryan, et al.,

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Respondents.

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Petitioner Thomas Clark, who is confined in the Arizona State Prison-Kingman,

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filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

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(Doc. 19) which the Court ordered the Government to answer. (Doc. 20 at 4). On March

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19, 2018, Petitioner filed a second “Motion Requesting to Have an Attorney Assign [sic]

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to My Case, Represent Me in Court” (Doc. 24). Petitioner requests the appointment of

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counsel because Petitioner (i) is not educated in the law, (ii) is indigent, and (iii) needs to

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conduct discovery.

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There is no constitutional right to the appointment of counsel in a civil case. See

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

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Regents of the Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In pro se and in forma

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pauperis proceedings, district courts do not have the authority “to make coercive

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appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310

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(1989). District courts, however, do have the discretion to request that an attorney

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represent an indigent civil litigant upon a showing of “exceptional circumstances.” 28

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U.S.C. § 1915(e)(1); Agyeman v. Corrections Corp. Of America, 390 F.3d 1101, 1103

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(9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “Indigent state

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prisoners applying for habeas corpus relief are not entitled to appointed counsel unless

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the circumstances of a particular case indicate that appointed counsel is necessary to

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prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).

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However, the Court has discretion to appoint counsel when “the interests of justice so

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require.” 18 U.S.C. § 3006A(a)(2)(B).

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A determination with respect to exceptional circumstances requires an evaluation

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of the likelihood of success on the merits as well as the ability of Plaintiff to articulate his

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claims pro se in light of the complexity of the legal issue involved. Id. “Neither of these

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factors is dispositive and both must be viewed together before reaching a decision.” Id.

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(quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Petitioner’s filings with the Court indicate that Petitioner is capable of navigating

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this proceeding and presenting arguments to the Court. Having considered the likelihood

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of success on the merits and Petitioner’s ability to articulate his claims, the Court does

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not find that exceptional circumstances are present that would require the appointment of

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counsel in this case. Petitioner remains in a position no different than many pro se

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prisoner litigants. The Court does not find that the appointment of counsel is necessary to

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prevent due process violations. Nor do the interests of justice so require appointment.

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The Court will deny Petitioner’s “Motion Requesting to Have an Attorney Assign [sic] to

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My Case, Represent Me in Court” (Doc. 24). If, at a later date, the Court determines that

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an evidentiary hearing is required, the Court will appoint counsel in accordance with Rule

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8(c) of the Rules Governing Section 2254 Proceedings.

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For the reasons set forth herein,

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IT IS ORDERED denying Petitioner’s “Motion Requesting to Have an Attorney

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Assign [sic] to My Case, Represent Me in Court” (Doc. 24).
Dated this 12th day of April, 2018.

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