Jones v. Cate

Filing 7

ORDER denying 3 without prejudice Petitioner's Motion to Appoint Counsel. Signed by Magistrate Judge Louisa S Porter on 9/29/09. (All non-registered users served via U.S. Mail Service).(tkl) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. DOMINGO URIBE, JR., Warden, Respondent. On August 28, 2009, Petitioner filed a petition for writ of habeas corpus ("Petition"). (Doc. No. 1.) In his Petition, Petitioner challenges his July 24, 1995 conviction by asserting the following four claims: (1) ineffective assistance of counsel; (2) instructional error; (3) prosecutorial misconduct; and (4) errors in evidentiary rulings. Also on August 28, 2009, Petitioner filed a motion to appoint counsel. (Doc. No. 3.) Petitioner claims he is nearly illiterate and suffers from mental and physical disabilities, and is currently on prescribed psychotropic medication due to his medical issues. (Id.) In support of his motion, Petitioner attaches medical records from February 28, 1995; April 25, 2006; and April 2007 noting that he suffers from delusions and paranoia. (Id. Ex. A-B.) Petitioner asserts he is a participant in the California Department of Corrections Mental Health Services Delivery System. (Id. at 3.) Petitioner also attaches a list of his prescription medications from February 7, 2009 to August 6, 2009. (Id. Ex. C.) Generally, "there is no absolute right to counsel in civil proceedings." Hedges v. Resolution Trust Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (citation omitted). Thus, federal -1CHRISTOPHER JONES, Petitioner, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Civil No. 09cv1896-JM (POR)

ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO APPOINT COUNSEL (Doc. No. 3.)

09cv1896

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courts do not have the authority "to make coercive appointments of counsel." Mallard v. United States District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1), to "request" that an attorney represent indigent civil litigants upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. County of King, 883 F.2d 819, 823 (9th Cir. 1989). "A finding of exceptional circumstances requires an evaluation of both the `likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision.'" Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Here, Petitioner claims that he was assisted with his motion and Petition by another prisoner; that the legal complexity of the issues in the Petition are beyond Petitioner's comprehension; that Petitioner cannot adequately respond to any contention that Respondent may make of a legal nature; and that he is unsure as to what medical records are needed and/or relevant for his action. Upon review, the Court finds Petitioner has failed to meet the showing necessary for an appointment of counsel at this time. The Petition presents four claims that the Court does not deem to be complex and that can be analyzed utilizing the state record. Further, the Court notes that the Petition is well-written with supporting facts and references to the state record. Accordingly, the Court hereby DENIES without prejudice Petitioner's motion to appoint counsel. IT IS SO ORDERED. DATED: September 29, 2009

LOUISA S PORTER United States Magistrate Judge cc The Honorable Jeffrey T. Miller All parties

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09cv1896