Evans v. Hartley

Filing 32

ORDER Denying Petitioner's 26 Motion for Reconsideration of Motion for Appointment of Counsel, signed by District Judge Lawrence J. O'Neill on 12/13/11. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATIF R. EVANS,
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Petitioner,
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v.
BOARD OF PAROLE HEARINGS
(BPH), et al.,

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Respondents.
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1:11-cv—01424-LJO-SKO-HC
ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION OF MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. 26)

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Petitioner is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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The matter has been referred to the Magistrate Judge pursuant to

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28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303.

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the Court is Petitioner’s motion for reconsideration of the

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Magistrate Judge’s denial of Petitioner’s motion for appointment

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of counsel.

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16, 2011.

Pending before

The motion for reconsideration was filed on November

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I.

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In the petition, Petitioner, who was a state prisoner at the

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Background

time the petition was filed, challenges the revocation of his
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state parole which resulted from Petitioner’s having committed

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one count of assault with a deadly weapon in violation of Cal.

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Pen. Code § 245.

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parole authorities on police reports and the reliability of

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police reports and witnesses’ versions of the assault; further,

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he complains of an alleged denial of his right to confront the

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writers of the reports.

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Petitioner challenges the reliance of the

Respondent filed an answer to the petition on November 22,
2011.

After Petitioner filed on the same date a notice of change

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of address which appears to indicate that Petitioner has been

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released from custody, the Court solicited briefing from both

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parties as to whether or not the petition has been rendered moot.

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The briefing has not yet been filed.

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With respect to Petitioner’s previous applications for the

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appointment of counsel, in his motion filed on September 13,

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2011, Petitioner argued that he was entitled to counsel because

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of the need for the Court to have input on matters relating to

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this proceeding in addition to the attorney general’s

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presentation, the presence of a statute that provides for the

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appointment of counsel for federal parolees, and the complexity

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of Petitioner’s case.

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prejudice because the Court did not find that the interests of

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justice required the appointment of counsel.

The Court denied the motion without

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In a motion for reconsideration filed by Petitioner on

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September 26, 2011, Petitioner argued that California’s Board of

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Parole Hearings (BPH) was required to give Petitioner counsel,

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and thus Petitioner was entitled to counsel in his habeas

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proceeding before this Court.

The motion was denied for the same
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reason as the first motion for appointment of counsel.

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Subsequently, the Court construed Petitioner’s objections to

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the ruling as a motion for reconsideration and denied the motion,

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concluding that Petitioner had not stated grounds under either

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Fed. R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b), and further

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noting that Petitioner had not complied with Local Rule 230(j) by

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setting forth new or different facts or circumstances, or

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additional grounds for the motion.

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In the present twenty-page motion for reconsideration by the

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District Judge, Petitioner argues the following: 1) he needs

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counsel to explain the applicable federal rules; 2) federal

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decisions require counsel in all parole matters before the BPH,

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including the instant federal proceeding for a writ of habeas

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corpus; 3) unspecified highly unusual circumstances, clear error

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by the BPH, and a change in the controlling law; and 4) counsel

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will be needed to help Petitioner file a traverse, which

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Petitioner describes as a “critical stage” of the proceedings.

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(Doc. 26, 6, 8, 11, 16.)

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II.

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Federal Rule of Civil Procedure 60(b) governs the

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reconsideration of final orders of the district court.

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permits a district court to relieve a party from a final order or

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judgment on various grounds, including 1) mistake, inadvertence,

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surprise, or excusable neglect; 2) newly discovered evidence;

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3) fraud or misconduct by an opposing party; 4) a void judgment;

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5) a satisfied judgment; or 6) any other reason that justifies

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relief from the judgment.

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reconsider are committed to the discretion of the trial court.

Analysis

Fed. R. Civ. P. 60(b).

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The rule

Motions to

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Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir. 1987);

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Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc).

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succeed, a party must set forth facts or law of a strongly

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convincing nature to induce the Court to reverse its prior

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decision.

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Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in part

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and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987),

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cert. denied, 486 U.S. 1015 (1988).

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that "[c]lause 60(b)(6) is residual and ‘must be read as being

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See, e.g., Kern-Tulare Water Dist. v. City of

The Ninth Circuit has stated

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exclusive of the preceding clauses.'"

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Etudes, S.A. v. Kaiser Cement, 791 F.2d 1334, 1338 (9th Cir.

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1986) (quoting Corex Corp. v. United States, 638 F.2d 119 (9th

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Cir. 1981)).

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‘extraordinary circumstances.'" Id.

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LaFarge Conseils et

Accordingly, "the clause is reserved for

Further, when filing a motion for reconsideration, Local

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Rule 230(j) requires a party to show the "what new or different

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facts or circumstances are claimed to exist which did not exist

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or were not shown upon such prior motion, or what other grounds

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exist for the motion," as well as “why the facts or circumstances

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were not shown at the time of the prior motion.”

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Here, Petitioner has not established any basis for relief

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pursuant to Fed. R. Civ. P. 60(b) with respect to the Court’s

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denial of Petitioner’s motion for appointment of counsel.

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Noncapital defendants have no right to the appointment of counsel

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in federal habeas proceedings.

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857 n.3 (1994); Miranda v. Castro, 292 F.3d 1063, 1067 (9th Cir.

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2002).

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habeas corpus proceeding if the interests of justice require it.

McFarland v. Scott, 512 U.S. 849,

A Magistrate Judge may appoint counsel at any stage of a

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18 U.S.C. § 3006A; Rule 8(c) of the Rules Governing Section 2254

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Cases.

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petitioner’s success on the merits and the ability of a

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petitioner to articulate his claims pro se in light of the

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complexity of the of the legal issues involved.

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Look, 718 F.2d 952, 954 (9th Cir. 1983).

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A district court evaluates the likelihood of a

Petitioner’s case is not complex.

Weygandt v.

Petitioner has not shown

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any extraordinary circumstances, changed facts or circumstances,

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or other grounds for relief.

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Accordingly, Petitioner’s motion for reconsideration of his
motion for appointment of counsel is DENIED.

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IT IS SO ORDERED.

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Dated:
b9ed48

December 13, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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