Ellis v. Biter

Filing 24

ORDER DENYING 23 Motion to Appoint Counsel signed by Magistrate Judge Stanley A. Boone on 2/9/2018. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT LEE ELLIS, Petitioner, 11 12 Case No. 1:17-cv-01443-DAD-SAB-HC ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (ECF No. 23) 13 14 MARTIN BITER, Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 Petitioner has moved for appointment of counsel. (ECF No. 23). There currently exists no 19 absolute right to appointment of counsel in habeas proceedings. See, e.g., Chaney v. Lewis, 801 20 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). 21 However, the Criminal Justice Act authorizes the appointment of counsel at any stage of the 22 proceeding for financially eligible persons if “the interests of justice so require.” 18 U.S.C. § 23 3006A(a)(2)(B). See also Rule 8(c), Rules Governing Section 2254 Cases. To determine whether 24 to appoint counsel, the “court must evaluate the likelihood of success on the merits as well as the 25 ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues 26 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 27 Petitioner argues that counsel should be appointed because he “is unlearned in the law, 28 having only a 12th grade education; indigent and cannot afford to obtain counsel, and because of 1 1 his incarceration, is unable to obtain crucial evidence under discovery that only an attorney can 2 obtain through cooperation.” (ECF No. 23 at 1). Upon review of the petition, the Court finds that Petitioner appears to have a sufficient 3 4 grasp of his claims and the legal issues involved and that he is able to articulate those claims 5 adequately. The legal issues involved are not extremely complex, and Petitioner does not 6 demonstrate a likelihood of success on the merits such that the interests of justice require the 7 appointment of counsel at the present time. Moreover, leave of court is required to conduct 8 discovery, and the Court has not authorized discovery in this proceeding. Rule 6, Rules 9 Governing § 2254 Cases. Accordingly, IT IS HEREBY ORDERED that the motion for appointment of counsel 10 11 (ECF No. 22) is DENIED without prejudice. 12 13 IT IS SO ORDERED. 14 Dated: February 9, 2018 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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