Anderson v. Solano County Superior Court

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 10/26/16 ORDERING that petitioner's requests for appointment of counsel (ECF Nos. 11 , 12 ) are DENIED without prejudice to a renewal of the motion at a later stage of the proceedings. Petitioner's request for a court order and stay of proceedings (ECF Nos. 11 , 13 ) is DENIED. Petitioner's request for information on how to file a motion for a temporary restraining order or preliminary injunction (ECF No. 14 ) is DE NIED. Petitioner's request for forms and information (ECF No. 15 ) is DENIED. Petitioner's request for a phone number at which to contact the undersigned (ECF No. 16 ) is DENIED. Petitioner shall file an amended petition by November 28, 2016. No further extensions will be granted.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TROY ANDERSON,

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Petitioner,

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No. 2:16-cv-1021 AC P

v.

ORDER

SOLANO COUNTY SUPERIOR COURT,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Currently before the court are a number of motions and

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requests for assistance filed by petitioner. ECF Nos. 11-16.

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I.

Procedural History
By order filed May 23, 2016, the petition was dismissed with leave to amend because

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petitioner failed to specify any grounds for relief. ECF No. 3. After two extensions of time, the

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amended petition is currently due on October 27, 2016. ECF No. 8. Petitioner was cautioned that

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no further extensions of time would be granted absent a showing of extraordinary cause. Id.

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II.

Requests for Counsel

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Petitioner has filed two motions specifically requesting the appointment of counsel and

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several other requests that reference the request for counsel. ECF Nos. 11-15. There currently

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exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner,
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105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of

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counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R.

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Governing § 2254 Cases. As he was previously advised, petitioner has not yet stated any grounds

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for relief and is being given an opportunity to amend the petition to correct this omission. ECF

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No. 3 at 2. In the absence of cognizable claims, the court cannot determine whether appointment

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of counsel might be appropriate.

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Petitioner generally asserts that he lacks legal knowledge, has limited access to legal

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materials, and his incarcerations makes it difficult for him to proceed pro se. ECF No. 12.

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However, these are issues common to most inmates and are insufficient to warrant the

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appointment of counsel. Petitioner further asserts that he has mental health conditions that

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necessitate the appointment of counsel, yet he fails to specify what conditions he has been

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diagnosed with and provides no records verifying his diagnoses and treatment. ECF Nos. 11, 13.

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Petitioner also has not explained or offered evidence of how his unspecified conditions affect his

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ability to proceed without the assistance of counsel. The fact that petitioner may be diagnosed

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with or receiving treatment for a mental health condition, without more, does not warrant

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appointment of counsel. The motion will therefore be denied without prejudice. Any future

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motion for appointment of counsel based on petitioner’s mental health must include evidence of

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petitioner’s diagnosis and how it prevents him from representing himself. Petitioner is cautioned,

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however, that a showing of mental impairment will not entitle him to appointed counsel in the

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absence of viable claims for relief.

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III.

Request for Court Order and Stay of Proceedings
Petitioner has also filed a request for the court to issue an order directing the California

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Department of Corrections and Rehabilitation (CDCR) to complete an “inmate request for

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assistance from the court” form. ECF No. 13. It appears that he seeks to offer this form as

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evidence of his mental health diagnoses and in support of his requests for counsel. Id. The form

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has spaces for a CDCR employee to identify the disabilities petitioner claims to suffer from and

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what accommodations he is requesting because of those disabilities. See id. at 3-4. However, it

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does not verify that petitioner does in fact have those conditions, nor does it establish that he is
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unable to proceed without counsel because of them. Id. Moreover, even if the form was intended

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to verify an inmate’s medical and mental health conditions, the court cannot compel the CDCR or

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its employees to certify that petitioner has a disability and requires some form of assistance or

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accommodation. These are determinations that must be made by the appropriate medical

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personnel. Moreover, as addressed above, the presence of a disability does not guarantee that

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appointment of counsel is appropriate.

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Petitioner also requests that the court stay the proceedings while he is waiting for the court

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to order CDCR to complete the inmate request form and for CDCR to complete the form. ECF

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Nos. 11, 13. Since the request for a court order is being denied, any request for a stay is moot.

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Additionally, petitioner has yet to file an amended petition so there is currently nothing pending

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before the court to stay.

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Petitioner’s request for a court order and stay of proceedings will therefore be denied.

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IV.

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There is No Attorney-Client Relationship with the Court
Petitioner has filed two requests, styled as letters to the undersigned, that indicate that

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petitioner believes he and the undersigned have an attorney-client relationship. ECF Nos. 14, 16.

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To be clear, there is no attorney-client relationship between petitioner and the undersigned judge,

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and everything that petitioner sends to the undersigned will be filed publicly in this case unless

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petitioner moves to file under seal and the motion is granted. The undersigned does not represent

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petitioner and cannot provide him with legal advice.

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Petitioner requests that he be provided with a phone number at which he may contact the

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undersigned in order to “discuss matters that are personal, legal & grave & to converse w[ith the

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undersigned] freely as any attorney could within chambers.” ECF No. 16 at 3. Such

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communications are inappropriate between a judge and a pro se party, and would be equally

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inappropriate between a judge and a lawyer for a party. Attorneys do not converse freely with

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judges, in private, about pending cases. Attorneys, and pro se parties, may communicate with the

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judge only in the presence of opposing counsel or in documents that are filed and served on

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opposing counsel. Accordingly, petitioner may communicate with the court only through

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documents that are filed with the Clerk of the Court. Requests for legal advice will not be

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granted.

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Petitioner also requests a “standard information packet & instruction manual” on how to

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apply for a “protection order,” and appears to be attempting to raise claims related to the violation

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of his constitutional rights in connection with an alleged assault and deficient medical care. ECF

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No. 14. Petitioner appears to be seeking information on how to request a preliminary injunction

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or temporary restraining order. The court does not have a standard information packet or

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instruction manual for motions for preliminary injunction or temporary restraining order.

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Petitioner is further advised that claims concerning the conditions of his confinement and

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violations of his constitutional rights are properly raised in a civil rights complaint filed pursuant

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to 42 U.S.C. § 1983, which provides a remedy for violations of civil rights by state actors. A

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habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration”

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of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v.

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Rodriguez, 411 U.S. 475, 485 (1973)); 28 U.S.C. § 2254. Claims regarding officer conduct are

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not properly presented in a habeas action such as this, and if petitioner seeks to pursue these

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claims he must bring them in a separate civil rights action after he has exhausted his available

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administrative remedies.

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V.

Request for Forms and Information
Finally, petitioner requests that the court “search, find & locate all prior case filings by

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providing [petitioner] w[ith] a printout of all past activity of civil cases, 1983’s, motions,

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pleadings, etc. w[ith] the case names entitled recorded in the California U.S. District Courts – (all

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courts) & (all districts).” ECF No. 15. He also requests that the court search for and send him

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forms, case law packets, procedures, and filing instructions for federal tort actions and the court’s

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list of counsel available for appointment. Id. This request will be denied. The court does not

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maintain the kind of informational and instructional packets petitioner seeks, and it is not

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appropriate for the court to search for and compile the kind of information petitioner seeks.

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Petitioner is informed that if the court determines that appointment of counsel is appropriate in a

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habeas case, the Office of the Federal Defender is responsible for providing representation or
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locating alternate counsel willing to accept appointment under the Criminal Justice Act.
VI.

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Amended Petition
Petitioner will be given a final thirty days in which to file an amended petition, up to and

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including November 28, 2016. No further extensions will be granted. Failure to file an amended

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petition will result in a recommendation that this case be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s requests for appointment of counsel (ECF Nos. 11, 12) are denied without

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prejudice to a renewal of the motion at a later stage of the proceedings.

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2. Petitioner’s request for a court order and stay of proceedings (ECF Nos. 11, 13) is
denied.
3. Petitioner’s request for information on how to file a motion for a temporary restraining
order or preliminary injunction (ECF No. 14) is denied.

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4. Petitioner’s request for forms and information (ECF No. 15) is denied.

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5. Petitioner’s request for a phone number at which to contact the undersigned (ECF No.

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6. Petitioner shall file an amended petition by November 28, 2016. No further extensions

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will be granted. Failure to file an amended petition will result in a recommendation that this case

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be dismissed.

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DATED: October 26, 2016

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