Trotter v. Pfeiffer

Filing 43

ORDER Denying Plaintiff's 42 Motion for New Trial, Review of Evidence, Resentencing, and Appointment of Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 8/9/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES TROTTER,

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Plaintiff,
v.

Case No. 1:18-cv-00259-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR NEW TRIAL, REVIEW OF EVIDENCE,
RESENTENCING, AND APPOINTMENT OF
COUNSEL

WARDEN PFEIFFER, et al.
(ECF No. 42)
Defendants.

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Plaintiff James Trotter is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.

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Currently before the Court is Plaintiff’s motion for new trial, review of evidence,

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resentencing, and appointment of counsel, filed on August 5, 2019. (ECF No. 42.) In his motion,

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Plaintiff asserts that the criminal judgment against him was obtained due to his trial counsel’s

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ineffective assistance and because evidence favorable to him was suppressed by the prosecution.

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Additionally, Plaintiff has attached a completed confidential citizen’s complaint form and a

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completed form petition for resentencing pursuant to California Penal Code § 1170.95.

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However, it has long been established that state prisoners cannot challenge the fact or

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duration of their confinement in a § 1983 action, and that their sole remedy lies in habeas corpus

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relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prison in state custody cannot use a §

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1983 action to challenge the fact or duration of his confinement. He must seek federal habeas
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corpus relief (or appropriate state relief) instead.”); see also Heck v. Humphrey, 512 U.S. 477, 486-

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87 (1994) (stating that a claim for damages for allegedly unconstitutional conviction or

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imprisonment is not cognizable under § 1983 unless “the conviction or sentence has been reversed

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on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus, 28 U.S.C. § 2254.”). Therefore, Plaintiff’s requests for a new trial, review of evidence, and

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resentencing must be denied.

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Further, with regards to Plaintiff’s request for appointment of counsel, the Court notes that

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent Plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1), Mallard v. United States District Court for the Southern District

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of Iowa, 490 U.S. 296, 298 (1989). Nevertheless, in certain exceptional circumstances, the Court

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may request the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek volunteer

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counsel only in the most serious and exceptional cases. In determining whether “exceptional

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circumstances exist, the district court must evaluate both the likelihood of success on the merits

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[and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted). “Neither of these

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considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d

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965, 970 (9th Cir. 2009). The burden of demonstrating exceptional circumstances is on Plaintiff.

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Id.

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Having considered the factors under Palmer, the Court finds that Plaintiff has failed to meet

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his burden of demonstrating exceptional circumstances warranting the appointment of counsel at

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this time. Therefore, Plaintiff’s request for the appointment of counsel is denied, without prejudice.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s motion for a new trial, review of evidence, and resentencing, (ECF No.
42), is DENIED; and

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Plaintiff’s request for appointment of counsel, (ECF No. 42), is DENIED, without
prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 9, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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