Villalobos v. Hernandez

Filing 60

ORDER denying without prejudice 59 Petitioners ex parte application for appointment of counsel. Signed by Judge M. James Lorenz on 10/3/2011. (mtb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ) Civil No. 09-cv-363-L(MDD) ) ) ORDER DENYING EX PARTE Petitioner, ) APPLICATION TO CONTINUE ) APPOINTMENT OF COUNSEL v. ) [DOC. 59] ) ROBERT HERNANDEZ, ) ) Respondent. ) ) Pending before the Court is Petitioner Angel Villalobos’ ex parte application to continue ANGEL VILLALOBOS, 12 13 14 15 16 17 18 appointment of counsel. (Doc. 59.) For the following reasons, the Court DENIES Petitioner’s 19 ex parte application. 20 21 I. PROCEDURAL HISTORY 22 On February 23, 2009, Petitioner, a state prisoner proceeding pro se and in forma 23 pauperis, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On 24 February 11, 2010, the Court rejected United States Magistrate Judge Anthony J. Battaglia’s 25 Report and Recommendations, and remanded on the issue of equitable tolling. (Doc. 18.) 26 Consequently, Judge Battaglia appointed Federal Defenders of San Diego, Inc. to represent 27 Petitioner for the limited purposes of a pre-evidentiary hearing conference and an evidentiary 28 hearing. (Doc. 19.) James Fife and Janet Tung from the Federal Defenders of San Diego 09cv363 1 appeared on behalf of Petitioner. (Docs. 24, 25.) 2 On October 15, 2010, Judge Battaglia held an evidentiary hearing and heard testimony 3 from two witnesses. (Doc. 43.) Several days later, another evidentiary hearing was held and 4 two more witnesses were called. (Doc. 44.) 5 Following the completion of the evidentiary hearings, Judge Battaglia issued another 6 Report and Recommendation recommending that the Court deny Respondent Robert 7 Hernandez’s motion to dismiss.1 On August 5, 2011, the Court adopted that Report and 8 Recommendation, and denied Respondent’s motion to dismiss. (Doc. 54.) 9 Shortly thereafter, James Fife and Janet Tung filed a Motion to Enlarge Briefing Schedule 10 or Grant Leave to File a Post-Return, Amended Petition on behalf of Petitioner. (Doc. 56.) 11 Because counsel was appointed for the limited purpose of representing Petitioner at the 12 evidentiary hearing, and because that purpose has been met, Judge Dembin issued an order 13 finding that any further representation has not been authorized by the court. (Doc. 57.) 14 Consequently, Judge Dembin presented three options to Petitioner’s counsel: (1) seek further 15 appointment from the Court; (2) advise the Court that they are proceeding pro bono; or (3) 16 withdraw from the case. Petitioner’s counsel selected the first option and now seeks further 17 appointment from the Court. (Doc. 59.) 18 19 II. DISCUSSION 20 Under 18 U.S.C. § 3006A(a)(2)(B), the district court may appoint counsel to represent a 21 habeas petitioner whenever “the court determines that the interests of justice so require,” and 22 such person is financially unable to obtain representation. The decision to appoint counsel is 23 within the discretion of the district court. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), 24 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 25 In this case, Petitioner requests continued appointment of counsel because of his limited 26 27 1 In March 2011, United States Magistrate Judge Mitchell D. Dembin was assigned to this 28 case while Judge Battaglia’s Report and Recommendation was pending. (Doc. 53.) 09cv363 2 1 knowledge of the English language and law, the issues involved are complex, and representation 2 is needed to maintain procedural due process as set forth in Knaubert. However, Petitioner has 3 extensively articulated his arguments and authority before the Court appointed counsel, and his 4 claims are typical claims arising in a habeas petition and not especially complex. Additionally, 5 though Knaubert articulated a three-factor test to determine the amount of process needed to 6 protect a habeas petitioner’s liberty interest, the Ninth Circuit added that though “[a] habeas 7 petitioner’s interest in release from illegal confinement undoubtedly is high . . . consideration of 8 remaining factors leads to the conclusion that due process does not require appointment of 9 counsel when an evidentiary hearing is not held.” Knaubert, 791 F.2d at 729. Given that there 10 is no impending evidentiary hearing, there is no threat that Petitioner’s procedural-due-process 11 rights will be denied. See id. Accordingly, the Court concludes that this is not an exceptional case warranting 12 13 continued representation, and that the interests of justice do not require further appointment of 14 counsel at this time. 15 16 III. CONCLUSION & ORDER 17 In light of the foregoing, the Court DENIES WITHOUT PREJUDICE Petitioner’s ex 18 parte application for appointment of counsel. 19 20 IT IS SO ORDERED. 21 22 DATED: October 3, 2011 23 M. James Lorenz United States District Court Judge 24 COPY TO: 25 HON. MITCHELL D. DEMBIN 26 UNITED STATES MAGISTRATE JUDGE 27 ALL PARTIES/COUNSEL 28 09cv363 3

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