Jester v. Dickinson et al

Filing 14

ORDER Denying 12 Motion to Appoint Counsel without prejudice. Signed by Magistrate Judge Peter C. Lewis on 6/15/2012. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DANIEL JESTER,

Civil No.

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12CV110 BTM (PCL)

Petitioner,
ORDER DENYING MOTION TO
APPOINT COUNSEL

vs.
VIMAL SINGH, Warden,
Respondent.

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INTRODUCTION

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On March 17, 2012, Petitioner, a state prisoner proceeding pro se, constructively filed

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a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc.

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6.) On June 14, 2012, Petitioner filed a Motion for Appointment of Counsel. (Doc. 12.) For

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the reasons set forth below, Petitioner’s Motion for Appointment of Counsel is DENIED.

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DISCUSSION

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In this Motion, Petitioner requests the appointment of counsel to assist him in

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prosecuting this civil action. The Constitution provides no right to appointment of counsel in

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a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the
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12cv110 BTM (PCL)

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litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28

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U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent

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persons. This discretion may be exercised only under “exceptional circumstances.” Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances

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requires an evaluation of both the ‘likelihood of success on the merits and the ability of the

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Plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Neither of these issues is dispositive and both must be viewed together before reaching a

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decision.” Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
Here, Petitioner does not set forth any arguments that he is entitled to appointed

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counsel. (Doc. 12, at 1.) Petitioner has been able to articulate sufficiently his legal claims,

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and he has not convinced this Court of the likelihood of success on the merits of his case.

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Thus, the Court DENIES Petitioner’s request without prejudice, as neither the interests of

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justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

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IT IS SO ORDERED.

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DATED: June 15, 2012

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CC:

Peter C. Lewis
U.S. Magistrate Judge
United States District Court
ALL PARTIES AND COUNSEL OF RECORD

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12cv110 BTM (PCL)