Reed, Sr. v. Biter

Filing 57

ORDER DENYING MOTIONS by Judge Thelton E. Henderson denying 55 Motion to Appoint Counsel; denying as moot 51 Motion for a Response. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 5/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TYRONE REED, Sr.,

Case No.

13-cv-5455-TEH

Petitioner,
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v.

ORDER DENYING MOTIONS

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MARTIN BITER,
Re: Dkt. Nos. 51, 55

Respondent.

United States District Court
Northern District of California

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Petitioner, Tyrone Reed, filed a pro se petition for a writ

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of habeas corpus under 28 U.S.C. § 2254.

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motion to dismiss and dismissed many claims from the petition as

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procedurally defaulted.

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the merits of the remaining claim and denied the petition.

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Docket No. 48.

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appoint counsel.

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Docket No. 47.

The Court granted a

The Court then reviewed

Petitioner has filed an appeal and a motion to

The Sixth Amendment right to counsel does not apply in

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habeas corpus actions.

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728 (9th Cir. 1986).

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authorizes a district court to appoint counsel to represent a

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habeas petitioner whenever “the court determines that the

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interests of justice so require” and such person is financially

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unable to obtain representation.

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is within the discretion of the district court.

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Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert, 791 F.2d at

See Knaubert v. Goldsmith, 791 F.2d 722,
Title 18 U.S.C. § 3006A(a)(2)(B), however,

The decision to appoint counsel
See Chaney v.

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728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

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courts have made appointment of counsel the exception rather than

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the rule by limiting it to: (1) capital cases; (2) cases that

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turn on substantial and complex procedural, legal or mixed legal

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and factual questions; (3) cases involving uneducated or mentally

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or physically impaired petitioners; (4) cases likely to require

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the assistance of experts either in framing or in trying the

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claims; (5) cases in which petitioner is in no position to

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investigate crucial facts; and (6) factually complex cases.

The

See

generally 1 Randy Hertz & James Liebman, Federal Habeas Corpus

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United States District Court
Northern District of California

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Practice and Procedure § 12.3b at 799-813 (6th ed. 2011).

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Appointment is mandatory only when the circumstances of a

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particular case indicate that appointed counsel is necessary to

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prevent due process violations.

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Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965).

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See Chaney, 801 F.2d at 1196;

The Court finds that appointment of counsel is not warranted

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in this case.

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mental illness, he has not submitted “substantial evidence” that

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he currently suffers from a serious mental illness that impairs

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his ability to prosecute this action.

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F.3d 1150, 1152–53 (9th Cir. 2005) (holding that court must

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assess petitioner's mental health during “relevant time period,”

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pendency of habeas petition, and must hold competency hearing if

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“substantial evidence” of debilitating mental illness exists).

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While Petitioner states he is suffering from a

See Allen v. Calderon, 408

Petitioner has filed seven different state habeas petitions

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regarding this conviction, each of which challenged his

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conviction on different grounds.

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filed at least ten civil rights complaints.

Since 2009, Petitioner has

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It is possible that

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all of these lawsuits were filed with the assistance of other

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inmates, but that would merely prove that Petitioner’s mental

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impairment does not interfere with his ability to secure legal

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assistance when needed.

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12-1377-CAS (SP), 2013 WL 693011, at *6 (C.D. Cal. Jan. 15, 2013)

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(equitable tolling context) (“Although petitioner's papers

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indicate he never personally prepared a habeas petition,

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petitioner admittedly understood that he needed ‘to go [through]

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the courts to obtain relief’ and sought the assistance of three

See, e.g., Payne v. Gipson, No. ED CV

different inmates to file four habeas petitions.

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United States District Court
Northern District of California

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petitioner's mental state did not ‘interfere [ ] with the ability

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to understand the need for assistance, the ability to secure it,

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or the ability to cooperate with or monitor assistance the

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petitioner does secure.’”) (quoting Bills v. Clark, 628 F.3d

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1092, 1100 (9th Cir. 2010)) (alterations in original).

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Petitioner has adequately litigated this habeas case.

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In other words,

Moreover,

The Court notes that Petitioner has also filed a motion to

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appoint counsel in this case in the Ninth Circuit.

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motion for the appointment of counsel (Docket No. 55) is DENIED.

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Petitioner’s motion for a response (Docket No. 51) is DENIED as

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moot.

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IT IS SO ORDERED.
Dated: 5/17/2016

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________________________
THELTON E. HENDERSON
United States District Judge

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Petitioner’s

G:\PRO-SE\TEH\HC.13\Reed5455.ord4.docx

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