Gonzalez v. Busby et al

Filing 27

ORDER denying Petitioner's 21 Motion to Appoint Counsel. The interests of justice do not warrant court-appointed counsel at this time. Signed by Magistrate Judge Ruben B. Brooks on 6/14/2012. (All non-registered users served via U.S. Mail Service) (jah)(jcj).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SALVADOR M. GONZALEZ,

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Petitioner,

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v.

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TIMOTHY E. BUSBY, Warden,

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Respondent.

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Civil No. 10cv02243 JLS(RBB)
ORDER DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL [ECF NO. 21]

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Petitioner Salvador M. Gonzalez, a state prisoner proceeding
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pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28
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U.S.C. § 2254 [ECF No. 1].1

In general, Gonzalez contests his

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conviction for first degree murder on several bases including,
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among other things, the sufficiency of the evidence, the adequacy
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of the jury instructions, cumulative error, ineffective assistance
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of appellate counsel, the denial of his motions for substitution of
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trial counsel and for a continuance to retain counsel, as well as
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the denials of his state habeas petitions by the superior and
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appellate courts.

(See Pet. 5, 11, 15, 18, 20, 25, 39, 59, 68, 73,

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Because the Petition includes a Memorandum of Points and
Authorities that is not consecutively paginated, the Court will
cite to the Petition using the page numbers assigned by the
electronic case filing system.
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10cv02243 JLS(RBB)

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ECF No. 1.)

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[ECF No. 12] and Gonzalez filed a Traverse [ECF No. 19].

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Court issued a Report and Recommendation Re: Denial of Petition for

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Writ of Habeas Corpus and Order Denying Request for Evidentiary

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Hearing [ECF No. 22], which is currently pending before the

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district court.

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Respondent Timothy E. Busy, warden, filed an Answer
This

Petitioner's "Request for a Legal Assistance to [A]ppoint an

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Attorney" was filed nunc pro tunc to January 30, 2012 [ECF No.

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21].2

The Court construes this as a Motion for Appointment of

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Counsel.

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focused largely on the claims in his underlying Petition.

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Req. Legal Assistance Appoint Att'y 4-8, ECF No. 21.)

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of his request for counsel, Petitioner asserts that he does not

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understand the law.

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attorney because his family members do not have jobs and do not

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have money to pay for a lawyer for him.

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remaining arguments concern the merits of his Petition.

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generally id. at 4-8.)

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The arguments in Gonzalez's Motion, in general, are

(See id. at 3.)

(See

In support

Also, he cannot afford an

(See id.)

Gonzalez's
(See

The Sixth Amendment right to counsel does not extend to

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federal habeas corpus actions by state prisoners.

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

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1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th

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Cir. 1986).

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seeking relief pursuant to 28 U.S.C. § 2254 may obtain representa-

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tion whenever “the court determines that the interests of justice

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so require . . . .”

McCleskey v.

Nonetheless, financially eligible habeas petitioners

18 U.S.C.A. § 3006A(a)(2)(B) (West Supp.

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The Court will also cite to this document using the page
numbers assigned by the electronic filing system.
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10cv02243 JLS(RBB)

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2010); see Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir.

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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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interests of justice require appointment of counsel when the court

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conducts an evidentiary hearing on the petition.

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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

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(West 2010).

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discretionary.

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The

Terrovona, 912

Otherwise, the appointment of counsel is
See Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d

at 728; Abdullah, 18 F.3d at 573.
“Indigent state prisoners applying for habeas relief are not

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entitled to appointed counsel unless the circumstances of a

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particular case indicate that appointed counsel is necessary to

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prevent due process violations.”

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Knaubert, 791 F.2d at 728-29.

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the absence of counsel if the issues involved are too complex for

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the petitioner.

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necessary if the petitioner has such limited education that he or

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she is incapable of presenting his or her claims.

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Bennett, 423 F.2d 948, 950 (8th Cir. 1970).

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appointment of counsel is required for habeas petitioners with

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nonfrivolous claims, a district court should consider the legal

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complexity of the case, the factual complexity of the case, the

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petitioner’s ability to investigate and present his claim, and any

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other relevant factors.”

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v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990); Johnson v.

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Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986)).

Chaney, 801 F.2d at 1196; see

A due process violation may occur in

In addition, the appointment of counsel may be

Hawkins v.

“To determine whether

Abdullah, 18 F.3d at 573 (citing Battle

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10cv02243 JLS(RBB)

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Because these factors are useful in determining whether due

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process requires court-appointed counsel, they are considered to

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the extent possible based on the record before the Court.

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argues, "I . . . [do] not understand most [laws] . . . I[]

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understand little . . . [it] is for this reason I ask help from

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[the Court] if [it] is possible."

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Att'y 3, ECF No. 21.)

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cannot afford a lawyer because his family members do not have money

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or jobs and are losing their homes.

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Gonzalez

(Req. Legal Assistance Appoint

Further, the Petitioner submits that he

(Id.)

Despite Petitioner's claimed lack of understanding of the law,

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he has sufficiently represented himself to date.

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and filed the following documents in this action:

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Petition with exhibits [ECF No. 1], a request to proceed in forma

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pauperis [ECF No. 2], a thirty-five-page Traverse [ECF No. 19],

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this Motion for Appointment of Counsel [ECF No. 21], a request for

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an extension of time to object to the Report and Recommendation

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[ECF No. 23], a request to file excess pages with the 100-page

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proposed objections [ECF No. 25], and a twenty-six-page Motion for

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a Certificate of Appealability [ECF No. 26].

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indication that anyone other than Gonzalez drafted these documents.

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He has prepared
a 232-page

There is no

From the face of the Petition, filed pro se, it appears that

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Gonzalez has a good understanding of this case and the legal issues

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involved.

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eight pages and raise ten distinct grounds for relief.

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generally Pet. 5-73, ECF No. 1.)

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and contain a recitation of relevant facts with citations to the

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applicable portions of the reporter's transcripts and state court

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opinions; the claims also include extensive legal arguments with

The substantive arguments in the Petition span sixty(See

The arguments are well organized

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10cv02243 JLS(RBB)

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citations to caselaw and other supporting authority.

(See

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generally id.)

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more than sufficient to competently present his claims.

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has not pointed to any particular circumstances that would make the

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appointment of counsel necessary at this time.

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F.2d at 1234 (denying request for appointed counsel where

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petitioner thoroughly presented the issues in his petition and

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memorandum of law).

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does not abuse its discretion in denying a state prisoner’s request

The detail and clarity of Gonzalez’s Petition is
Petitioner

See Bashor, 730

Under such circumstances, a district court

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for attorney representation.

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See LaMere v. Risley, 827 F.2d 622,

626 (9th Cir. 1987).

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Furthermore, “where the issues involved can be properly

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resolved on the basis of the state court record, a district court

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does not abuse its discretion in denying a request for court-

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appointed counsel.”

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Armontrout, 973 F.2d 655, 661 (8th Cir. 1992); Travis v. Lockhart,

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787 F.2d 409, 411 (9th Cir. 1986) (per curiam) (finding the

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district court did not abuse its discretion in denying the

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petitioner’s motion for appointment of counsel where the

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allegations were properly resolved on the state court record).

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Here, as discussed, Gonzalez challenges his conviction on numerous

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grounds.

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1.)

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and was able to analyze the issues involved on the basis of the

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state court record [ECF No. 22].

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be able to properly resolve the allegations in the Petition on the

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basis of the record.

Hoggard, 29 F.3d at 471; see McCann v.

(See Pet. 5, 11, 15, 18, 20, 25, 39, 59, 68, 73, ECF No.

The Court was provided all relevant documents and transcripts

The district court will likewise

See Travis, 787 F.2d at 411.

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10cv02243 JLS(RBB)

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Moreover, “[t]he procedures employed by the federal courts are

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highly protective of a pro se petitioner’s rights.

The district

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court is required to construe a pro se petition more liberally than

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it would construe a petition drafted by counsel.”

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F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)

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(holding pro se complaint to less stringent standard) (per

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curiam)); see Bashor, 730 F.2d at 1234.

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pleaded sufficiently for this Court to direct Respondent to file an

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answer or other responsive pleading to the Petition [ECF No. 5].

Knaubert, 791

Gonzalez’s Petition was

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Indeed, the assistance that counsel provides is valuable.

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attorney may narrow the issues and elicit relevant information from

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his or her client.

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present to the court a reasoned analysis of the controlling law.”

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Knaubert, 791 F.2d at 729.

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“[U]nless an evidentiary hearing is held, an attorney’s skill in

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developing and presenting new evidence is largely superfluous; the

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district court is entitled to rely on the state court record

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alone.”

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28 U.S.C.A. § 2254(d)).

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provided by attorneys, while significant, is not compelling.”

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“An

An attorney may highlight the record and

But as the court in Knaubert noted,

Id. (citing Sumner v. Mata, 449 U.S. 539, 545-57 (1981);
“Therefore, the additional assistance
Id.

If an evidentiary hearing is ordered, Rule 8(c) of the Rules

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Governing Section 2254 Cases requires that counsel be appointed to

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a petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B).

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8(c), 28 U.S.C. foll. § 2254; see Wood v. Wainwright, 597 F.2d 1054

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(5th Cir. 1979).

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the effective utilization of any discovery process.

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U.S.C. foll. § 2254.

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from illegal confinement undoubtedly is high.

Rule

Additionally, the Court may appoint counsel for
Rule 6(a), 28

“A habeas petitioner’s interest in release

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However,

10cv02243 JLS(RBB)

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consideration of remaining factors leads to the conclusion that due

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process does not require appointment of counsel when an evidentiary

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hearing is not held.”

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recommended that Petitioner's request for an evidentiary hearing be

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denied [ECF No. 22], and at this time, it does not appear that

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discovery will be necessary.

Knaubert, 791 F.2d at 729.

This Court has

For the reasons stated above, the interests of justice do not

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warrant court-appointed counsel at this time.

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Petitioner’s Motion

for Appointment of Counsel is DENIED.
IT IS SO ORDERED.

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DATED:

June 14, 2012

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cc:

__________________________________
Ruben B. Brooks
United States Magistrate Judge

Judge Sammartino
All parties

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10cv02243 JLS(RBB)