Smith v. Small et al

Filing 35

ORDER denying without prejudice 30 Motion to Appoint Counsel. Signed by Magistrate Judge William McCurine, Jr on 12/31/13. (kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER DALE SMITH,

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Petitioner,

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v.
LARRY SMALL, Warden, et al.,
Respondents.

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I.

Civil
No.

10cv2429-LAB (WMc)

ORDER DENYING
PETITIONER’S REQUEST FOR
APPOINTMENT OF COUNSEL
WITHOUT PREJUDICE
[ECF No. 30.]

INTRODUCTION

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Petitioner Christopher Dale Smith has requested his current pro bono counsel be

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appointed counsel in connection with his federal habeas corpus petition filed November

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24, 2010. [Doc. No. 30.] Petitioner contends his case is too complex to proceed without

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court-appointed counsel and he would not have been able to advance his case to its

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present status had it not been for the help of pro bono counsel. Id. at 1-2. After

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reviewing Petitioner’s claims, this Court denies his request for appointment of counsel

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without prejudice.

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II.

STANDARD OF REVIEW

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

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actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v.

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Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728

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(9th Cir. 1986). However, financially eligible habeas petitioners seeking relief pursuant

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to 28 U.S.C. § 2254 may obtain representation whenever the court “determines that the

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interests of justice so require.’” 18 U.S.C. § 3006A(a)(2)(B) (West Supp. 1995);

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

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1228, 1234 (9th Cir. 1984); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994).

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III.

DISCUSSION

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To determine if appointment of counsel is appropriate for Petitioner, the Court

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must examine the possibility and extent of due process violations that may arise as

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Petitioner proceeds pro se. In the Ninth Circuit, “[i]ndigent state prisoners applying for

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habeas relief are not entitled to appointed counsel unless the circumstances of a particular

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case indicate that appointed counsel is necessary to prevent due process violations.”

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Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. A due process violation may

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occur in the absence of counsel if the issues involved are too complex for the petitioner.

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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.

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

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In the Eighth Circuit, “[t]o determine whether appointment of counsel is required

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for habeas petitioners with nonfrivolous claims, a district court should consider the legal

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complexity of the case, the factual complexity of the case, the petitioner’s ability to

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investigate and present his claim, and any other relevant factors.” Abdullah v. Norris, 18

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F.3d at 573 (citing Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)); Hoggard,

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29 F.3d at 471; Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993); Smith v. Groose, 998

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F.2d 1439, 1442 (8th Cir. 1993); Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir.

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1986). The Ninth Circuit also considers the clarity and coherence of a petitioner’s district

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court pleadings to determine the necessity of appointment of counsel; if clear and

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understandable, the court usually finds appointment of counsel unnecessary. LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987); see also Chu Tran v. Malfi, No. C 06-6374,

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2007 WL 988117, at *2 (N.D. Cal. Apr. 2, 2007).

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When determining if due process requires appointment of counsel, the Court

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utilizes the record before it to address the matter. After reviewing Petitioner’s federal

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habeas petition and supplemental materials, it appears Petitioner has adequately

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articulated his claims in the hand-written Petition. [ECF No. 1.] Moreover, “[w]here the

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issues involved can be properly resolved on the basis of the state court record, a district

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court does not abuse its discretion in denying a request for court-appointed counsel.”

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Hoggard, 29 F.3d at 471; McCann v. Armontrout, 973 F.2d 655, 661 (8th Cir. 1992);

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Travis v. Lockhart, 787 F.2d 409, 411 (8th Cir. 1986) (per curiam) (holding that district

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court did not abuse its discretion in denying § 2254 habeas petitioner’s motion for

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appointment of counsel where allegations were properly resolved on basis of state court

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record). Here, the Court has reviewed the state court record and determined it is able to

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properly resolve the issues involved on the basis of the state court record. Accordingly,

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on October 21, 2013, it issued its Report & Recommendation. [ECF No. 31.] Therefore,

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this Court finds no appointment of counsel is necessary at this time.

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IV.

CONCLUSION AND ORDER THEREON

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For the above-stated reasons, the “interests of justice” in this matter do not compel

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the appointment of counsel. Accordingly, Petitioner’s request for appoint of counsel is

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DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: December 31, 2013

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Hon. William McCurine, Jr.
U.S. Magistrate Judge
U.S. District Court