(HC) Banks v. Sherman

Filing 9

ORDER DENYING 3 Motion to Appoint Counsel signed by Magistrate Judge Erica P. Grosjean on 9/10/2020. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY BANKS, Petitioner, 12 13 Case No. 1:20-cv-01225-EPG-HC ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL v. (ECF No. 3) 14 15 STU SHERMAN, Respondent. 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. Petitioner has filed a motion for appointment of counsel. (ECF No. 3). 19 There currently exists no absolute right to appointment of counsel in habeas proceedings. 20 See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 21 479, 481 (9th Cir. 1958). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of 22 counsel at any stage of the proceeding for financially eligible persons if “the interests of justice 23 so require.” See Rule 8(c), Rules Governing Section 2254 Cases. To determine whether to 24 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 the issues in this case are 28 complex, he has no legal education or experience, and his work hours prevent him from fully 1 1 utilizing the law library. Petitioner has relied on other inmates to assist him. Upon review of the 2 petition and the instant motion for appointment of counsel, the Court finds that with the 3 assistance of other inmates, Petitioner appears to have a sufficient grasp of his claims and the 4 legal issues involved and that he is able to articulate those claims adequately. The legal issues 5 involved are not extremely complex, and Petitioner does not demonstrate a likelihood of success 6 on the merits such that the interests of justice require the appointment of counsel at the present 7 time. If, upon review of Respondent’s response to the petition, the Court finds that the legal 8 issues are more complex than they appear currently, the Court will revisit Petitioner’s request for 9 counsel. 10 Accordingly, IT IS HEREBY ORDERED that Petitioner’s motion for appointment of 11 counsel (ECF No. 3) is DENIED without prejudice. 12 13 14 IT IS SO ORDERED. Dated: September 10, 2020 /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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