Andrews v. Knowles et al

Filing 20

ORDER Denying without Prejudice Petitioner's 19 Motion for Reconsideration of Order Denying Appointment of Counsel. Signed by Magistrate Judge Barbara Lynn Major on 6/1/2011. (All non-registered users served via U.S. Mail Service)(knh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARCUS ANDREWS,
Petitioner,

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v.

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MIKE KNOWLES, Warden, et al.,

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Respondents.

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Case No. 10cv2109-BEN (BLM)
ORDER DENYING WITHOUT
PREJUDICE PETITIONER’S MOTION
FOR RECONSIDERATION OF ORDER
DENYING APPOINTMENT OF
COUNSEL
[ECF No. 19]

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On March 10, 2011, Petitioner, a state prisoner proceeding pro se, moved this Court to

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appoint counsel. Doc. No. 12. The Court denied his request on March 17, 2011, finding that

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Petitioner had failed to establish the requisite “exceptional circumstances” to justify appointment

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of counsel. ECF No. 14. Petitioner now seeks reconsideration of the Court’s Order. ECF No. 19.

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In support of his motion, Petitioner presents additional facts and argument, which he contends

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provide justification for alteration of the Court’s prior findings and warrant appointment of

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counsel. Id. at 1-3.

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LEGAL STANDARD

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Pursuant to Civil Local Rule 7.1(i)(1), a party may apply for reconsideration “[w]henever

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any motion or any application or petition for any order or other relief has been made to any

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judge and has been refused in whole or in part . . . .” CivLR 7.1(i)(1); see also United States v.

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Martin, 226 F.3d 1042, 1049 (9th Cir. 2000) (explaining that where reconsideration of a non-final

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order is sought, the district court has inherent jurisdiction to modify, alter, or revoke its earlier

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ruling).

The party seeking reconsideration must show “what new or different facts and
10cv2109-BEN (BLM)

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circumstances are claimed to exist which did not exist, or were not shown, upon such prior

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application.” CivLR 7.1(i)(1). Civil Local Rule 7.1(i)(2) permits motions for reconsideration within

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twenty-eight (28) days of the entry of the ruling sought to be reconsidered.

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DISCUSSION

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In his previous motion, Petitioner stated that he has a disability, but he did not provide

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any evidence in support of the alleged disability. See ECF No. 12. In his instant motion,

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Petitioner includes a declaration from a fellow inmate as well as numerous medication consent

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forms and physician’s orders for medication. ECF No. 19 at 5-6, 19-33. Petitioner explains that

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the fellow inmate is “a jail house litigate whom has authored everything within [Petitioner’s]

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Federal Writ and proceedings” (id. at 1), and the inmate himself avers that “[w]ithout my

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assistance [Petitioner] would not have been able to present this, Motion For Appointment Of

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Counsel, nor file his writ of habeus [sic] corpus . . . .” (id. at 6). Petitioner further explains that

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this jail house litigate may soon be transferred, and Petitioner asserts that without the assistance

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of either the jail house litigate or counsel, he will be unable to further pursue habeas relief. Id.

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at 3. Petitioner also states that in addition to his “mental illness and low cognitive functions,”

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he “suffered and still suffers from severe side effects after attempting to quit his psychotropic

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medication ‘cold turkey’ in hopes to be cognitive enough to at the least achieve assistance in

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pursuing his post conviction relief.” Id. at 2, 3.

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As an initial matter, the Court notes that Petitioner’s request for reconsideration is

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untimely, as more than twenty-eight days have passed since the Court denied his first request.

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See CivLR 7.1(i)(2). However, in light of Petitioner’s pro se prisoner status and in the interest

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of justice, the Court will consider the request on the merits.

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As this Court explained in its March 17, 2011 Order, a state prisoner has no Sixth

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Amendment right to the assistance of counsel in federal habeas proceedings. See McCleskey v.

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Zant, 499 U.S. 467, 495 (1991); see also Nevius v. Sumner, 105 F.3d 453, 459 (9th Cir. 1996);

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Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, courts may appoint counsel

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for financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 whenever

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

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10cv2109-BEN (BLM)

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Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) (citing 18 U.S.C. § 3006A(a)(2)(B)).

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

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to appointed counsel unless the circumstances of a particular case indicate that appointed

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counsel is necessary to prevent due process violations.” Chaney, 801 F.2d at 1196. A due

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

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the petitioner. See Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir. 1993).

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The court’s discretion to appoint counsel may be exercised only under “exceptional
Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).1

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circumstances.”

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exceptional circumstances requires an evaluation of both the likelihood of success on the merits

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and the ability of the petitioner to articulate his claims pro se in light of the complexity of the

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legal issues involved. Neither of these factors is dispositive and both must be viewed together

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before reaching a decision.” Id. (citations and internal quotation marks omitted).

“A finding of

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Having reviewed Petitioner’s additional factual assertions and arguments, the Court finds

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that they do not present a basis for reversing its prior decision. The thrust of Petitioner’s

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argument is that he requires the assistance of counsel because he is mentally incompetent and

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incapable of understanding how to proceed with presenting his case. ECF No. 19 at 3. However,

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the facts do not support Petitioner’s allegation that he is unable to litigate this matter on his own.

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The trial court did not find Petitioner incompetent to stand trial and Petitioner provides no

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documentation from a physician regarding the level of his mental functioning.

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Petitioner provides medication consent forms and physician’s orders for medication, no

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documents detail precisely why or for what mental illness(es) Petitioner has been prescribed

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these medications.

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medications, the Court is uncertain as to what medications, if any, Petitioner is currently taking

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because only two of the medication-related documents Petitioner submitted are from 2011 (id.

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at 19-20) and Petitioner himself indicates that he may have quit taking his medication (id. at 2).

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Additionally, this Court again reviewed Petitioner’s typed petition and still finds that

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Similarly, although Petitioner asserts that he suffers side effects from his

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The Terrell court cited 28 U.S.C. § 1915(d), but the legislature subsequently renumbered this section as
28 U.S.C. § 1915(e)(1).

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10cv2109-BEN (BLM)

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Petitioner adequately presented his arguments and the issues are not so complex that failure to

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appoint counsel is likely to result in due process violations. See Bonin, 999 F.2d at 428-29. That

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is, regardless of whether or not Petitioner has consistently obtained assistance from a “jail house

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litigate,” Petitioner has adequately articulated his claims pro se such that this Court can discern

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both the factual and legal bases for his claims. Moreover, to the extent that any ambiguity as

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to Petitioner’s claims exists, the Court notes that Petitioner presented the same four claims to

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the California Court of Appeal and/or the California Supreme Court with the assistance of

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counsel. ECF No. 4 at 2-3, 7-11. The Court need not appoint counsel when the Court can

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determine the merits based upon the existing state court record. See Knaubert v. Goldsmith,

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791 F.2d 722, 729 (9th Cir. 1986) (per curiam) (concluding that when a court properly declines

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to hold an evidentiary hearing, the court’s denial of a motion to appoint counsel does not amount

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to a denial of due process).

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CONCLUSION AND ORDER

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The Court continues to conclude that Petitioner’s submissions have shown an adequate

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grasp of the legal issues in this case and Petitioner has not demonstrated that the matters are

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so complex that a due process violation would result. See Bonin, 999 F.2d at 428-29. The Court

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also finds that while Petitioner has asserted sufficient facts to state a claim for federal habeas

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relief, he has not established a likelihood of success on the merits. See Terrell, 935 F.2d at 1017.

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Under such circumstances, a district court does not abuse its discretion in denying a state

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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) (affirming district court’s denial

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of request for appointment of counsel where pleadings demonstrated petitioner had “a good

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understanding of the issues and the ability to present forcefully and coherently his contentions”).

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Accordingly, Petitioner’s motion for reconsideration and for appointment of counsel is DENIED

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without prejudice.

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IT IS SO ORDERED.
DATED: June 1, 2011
BARBARA L. MAJOR
United States Magistrate Judge
10cv2109-BEN (BLM)
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