Barron v. Cate et al

Filing 43

Order by Hon. Phyllis J. Hamilton Denying Motion to Appoint Counsel and Granting Leave to Proceed In Forma Pauperis.(hlkS, COURT STAFF) (Filed on 3/5/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY RAUL BARRON,
Petitioner,

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ORDER DENYING
PETITIONER’S MOTION FOR
APPOINTMENT OF COUNSEL
AND GRANTING LEAVE TO
PROCEED IN FORMA
PAUPERIS

vs.
MIKE STAINER, Warden,
Respondent.
/

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For the Northern District of California

United States District Court

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No. C 11-2797 PJH

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On January 25, 2013, the court issued an order denying the petition for writ of

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habeas corpus and entered judgment against petitioner. Petitioner, who is represented,

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now moves for appointment of counsel and for leave to proceed in forma pauperis.

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The Sixth Amendment’s right to counsel does not apply in habeas corpus actions.

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, the district court has

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discretion to appoint counsel for a habeas petitioner when it determines “that the interests

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of justice so require.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C.

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§ 3006A(a)(2)(B). Furthermore, 28 U.S.C. § 1915(d) confers on a district court the

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discretion to designate counsel to represent an indigent civil litigant only in “exceptional

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circumstances.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Here,

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petitioner seeks appointment of counsel pursuant to 18 U.S.C. § 3006A, which provides for

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payment for representation, rather than appointment of pro bono counsel. See United

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States v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Wash.,

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795 F.2d 796, 801 (9th Cir. 1986) (noting that 18 U.S.C.§ 3006A(d) makes a provision for

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paying appointed counsel, whereas “[n]o statute provides funds to pay counsel secured

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under 28 U.S.C. § 1915(d)”).

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In order to be entitled to appointed counsel pursuant to § 3006A, a petitioner must

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show that the “circumstances of a particular case indicate that appointed counsel is

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necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. Under Ninth

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Circuit authority, “[i]n deciding whether to appoint counsel in a habeas proceeding, the

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district court must evaluate the likelihood of success on the merits as well as the ability of

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the petitioner to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (holding that interlocutory

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order denying motion for appointment of habeas counsel is not appealable, noting rules

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governing habeas “do not limit the appointment of counsel under 18 U.S.C. § 3006A at any
stage of the case if the interest of justice so requires”) (citing Rule 8(c), 28 U.S.C. foll.

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For the Northern District of California

United States District Court

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§ 2254).

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Here, the court issued a certificate of appealability on petitioner’s claim that the state

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court’s exclusion of evidence to impeach Detective Rodriguez violated the Sixth

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Amendment right of confrontation and was not harmless error. Petitioner contends that by

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issuing a certificate of appealability, the court determined that the appeal is potentially

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meritorious. Mot. at 4 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Having ruled

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on the claims presented in the habeas petition, the court determines that petitioner has not

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shown a strong likelihood of success on the merits of his appeal, but has presented a

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debatable claim that minimally satisfies a showing of some likelihood of success.

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With respect to the second factor for appointment of counsel, petitioner argues that

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the confrontation clause and harmless error issues involved in his appeal are complex, and

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that he has little education and no legal training, making it impossible to litigate those

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issues on appeal without the aid of counsel. Having reviewed the record, the court

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determines that the confrontation clause issue is not particularly complex, and that when

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petitioner appeared pro se, he did not experience difficulty in articulating his habeas claims

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due to the complexity of the issues involved. Wilborn, 789 F.2d at 1331 (9th Cir. 1986)

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(“although Wilborn may have found it difficult to articulate his claims pro se, he has neither

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demonstrated a likelihood of success on the merits nor shown that the complexity of the
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issues involved was sufficient to require designation of counsel”). In support of the request

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for appointment, petitioner’s habeas counsel has submitted a declaration stating that

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continuing with unpaid representation would create a financial hardship on counsel.

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Counsel’s hardship is not, however, properly considered on a request for appointment of

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counsel. Having considered the relevant factors, the court determines that the interests of

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justice do not require appointment of counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B). The

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motion for appointment of counsel is DENIED.

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Petitioner requests leave to proceed on appeal in forma pauperis and has provided a
supporting financial affidavit. The affidavit submitted by petitioner does not address every
detail required by Form 4 of the Appendix of Forms to the Federal Rules of Appellate

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For the Northern District of California

United States District Court

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Procedure, and petitioner has not submitted a certified copy of his prisoner trust account for

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the immediately preceding six-month period, as required by 28 U.S.C. § 1915(b). However,

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the court is satisfied that petitioner has demonstrated his inability to pay or to give security

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for fees and costs, based on his financial affidavit dated February 13, 2013, and his initial

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application to proceed in forma pauperis and accompanying trust account statement which

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demonstrated inability to pay the full amount of a filing fee at the time he filed his habeas

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petition. Doc. no. 2. The court notes that the initial application to proceed in forma

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pauperis was denied as moot because petitioner paid the five dollar filing fee applicable

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only to habeas petitions. Doc. no. 19. For good cause shown, the motion to proceed on

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appeal in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915(a)(1) and Fed. R.

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App. P. 24(a)(1).

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IT IS SO ORDERED.
Dated: March 5, 2013
PHYLLIS J. HAMILTON
United States District Judge

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