He v. Lynch et al

Filing 6

ORDER DENYING 2 Motion to Appoint Counsel signed by Magistrate Judge Gary S. Austin on 8/13/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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YUN PING HE,

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Case No. 1:15-cv-01231-GSA-HC

Petitioner,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF No. 2)

v.
WARDEN OF MESA VERDE
IMMIGRATION DETENTION FACILITY,
et al.,
Respondents.

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Petitioner is in ICE custody and proceeding pro se with a petition for writ of habeas

19 corpus pursuant to 28 U.S.C. § 2241. On August 10, 2015, Petitioner filed a motion for
20 appointment of counsel. (ECF No. 2).
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There currently exists no absolute right to appointment of counsel in habeas proceedings.

22 See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d
23 773, 774 (8th Cir. 1984). However, Title 18 U.S.C. 3006A(a)(2)(B) authorizes the appointment
24 of counsel at any stage of the case if “the interests of justice so require.” See Rule 8(c), Rules
25 Governing Section 2254 Cases. The court should only appoint counsel under “exceptional
26 circumstances” and after evaluating the likelihood of success on the merits and the ability of the
27 petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.
28 See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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Petitioner argues that counsel should be appointed because he has a high likelihood of

2 success on the merits, the complexity of the issues involved in the case and Petitioner’s inability
3 to adequately present the issues, he will be unable to effectively pursue discovery without the aid
4 of an attorney, and because he believes an evidentiary hearing will be scheduled in this case.
5 Upon a review of Petitioner’s petition and the instant motion for appointment of counsel, the
6 Court finds that Petitioner has a sufficient grasp of his claims for habeas relief and the legal
7 issues involved, and that he is able to articulate those claims adequately at this time.
8 Furthermore, Petitioner does not demonstrate a likelihood of success on the merits at this time
9 such that his case should be classified as an “exceptional circumstance.” See Weygandt, 718
10 F.2d at 954. Petitioner has not made a request for discovery yet, and at this time, the Court does
11 not find that counsel is necessary for discovery. Also, the Court notes that Respondent has not
12 yet submitted a response to the petition and the Court has not yet ordered an evidentiary hearing
13 or expressed an opinion on whether an evidentiary hearing will be necessary in this case.
14 Therefore, in the present case, the Court does not find that the interests of justice require the
15 appointment of counsel at the present time.
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Accordingly, IT IS HEREBY ORDERED that Petitioner's motion for appointment of

17 counsel is DENIED without prejudice.
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IT IS SO ORDERED.
Dated:

August 13, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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