Lemons v. Unknown

Filing 18

ORDER denying without prejudice 17 Motion to Appoint Counsel. Signed by Judge Anthony J. Battaglia on 11/18/11. (All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Warren Claudius Lemons,

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Plaintiff,
v.

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A. Hedgpeth, Warden,
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Defendants.
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Civil No. 10-cv-00807-AJB
ORDER DENYING MOTION TO
APPOINT COUNSEL
[Doc. No. 17]

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Petitioner, a state prisoner proceeding pro se, has requested appointment of counsel to pursue his

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petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. [Doc. No. 17.] The request

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for appointment of counsel is DENIED.

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The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state

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prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th

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Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible

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habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the

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court “determines that the interests of justice so require.’” 18 U.S.C. § 3006A(a)(2)(B); Terrovona v.

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Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984);

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Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994).

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10-cv-00807-AJB

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The interests of justice require appointment of counsel when the court conducts an evidentiary

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hearing on the petition. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah v. Norris, 18

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F.3d 571, 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is

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discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791

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F.2d at 728; Abdullah, 18 F.3d at 573.

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In the Ninth Circuit, “[i]ndigent state prisoners applying for habeas relief are not entitled to

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appointed counsel unless 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; Knaubert, 791 F.2d at 728-29.

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A due process violation may occur in the absence of counsel if the issues involved are too complex for

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the petitioner. In addition, the appointment of counsel may be necessary if the petitioner has such

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limited education that he or she is incapable of presenting his or her claims. Hawkins v. Bennett, 423

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F.2d 948, 950 (8th Cir. 1970).

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Here, Petitioner states only that “[d]ue to the complex nature of the case, to achieve due process,

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I hereby request that an attorney be appointed to represent me.” [Doc. 17 at 1.] Without more, Peti-

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tioner’s conclusory references to due process and the case’s complexity are not enough to warrant

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appointment of counsel. At a minimum, Petitioner would need to explain why the issues involved are

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too complex for him, and why appointment of counsel is necessary to prevent due process violations.

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Moreover, the Court notes that Petitioner is a physician and, as such, is presumably highly

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educated. Is therefore seems unlikely that he has such limited education as to be incapable of presenting

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his claims. The Court also notes that thus far in the proceedings, Petitioner has appeared able to

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articulate his claims. Under these circumstances, a district court does not abuse its discretion in denying

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a state prisoner’s request for appointment of counsel as it is simply not warranted by the interests of

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justice. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). Indeed, “[t]he procedures employed

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by the federal courts are highly protective of a pro se petitioner’s rights. The district court is required to

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construe a pro se petition more liberally than it would construe a petition drafted by counsel.” Knaubert,

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791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less

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stringent standard) (per curiam)); Bashor, 730 F.2d at 1234.

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10-cv-00807-AJB

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Therefore, the Court finds that the appointment of counsel is not warranted at this time.
Petitioner’s request for appointment of counsel is accordingly DENIED without prejudice.
IT IS SO ORDERED.

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DATED: November 18, 2011

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Hon. Anthony J. Battaglia
U.S. District Judge

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10-cv-00807-AJB