Hernandez v. People of the State et al

Filing 14

ORDER Denying Without Prejudice Petitioner's 9 Motion to Appoint Counsel. Signed by Magistrate Judge David H. Bartick on 10/30/2012. (All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FRANCISCO HERNANDEZ,

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Petitioner,

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Civil No.

v.
TIM V. VIRGA, Warden,

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Respondent.

12cv1682-BEN (DHB)

ORDER DENYING WITHOUT
PREJUDICE PETITIONER’S
REQUEST FOR APPOINTMENT OF
COUNSEL
[ECF No. 9]

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Petitioner, Francisco Hernandez, a state prisoner proceeding pro se, has requested

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appointment of counsel to pursue his petition for a writ of habeas corpus brought pursuant to 28

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U.S.C. § 2254. [EFC No. 9.] The request for appointment of counsel is denied without

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prejudice.

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

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by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d

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

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However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may

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obtain representation whenever the court “determines that the interests of justice so require.’”

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18 U.S.C. § 3006A(a)(2)(B) (2010); 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); Hoggard v. Purkett, 29 F.3d 469,

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471 (8th Cir. 1994).
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11cv2418-JAH (DHB)

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

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evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728;

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Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when no

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evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728. If

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the Court determines that an evidentiary hearing becomes necessary in the future, the Court will

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require appointment of counsel at that time.

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

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

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is necessary to prevent due process violations.” Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d

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at 728-29. The Ninth Circuit considers the clarity and coherence of a petitioner’s district court

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

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court typically finds appointment of counsel unnecessary. LaMere v. Risely, 827 F.2d 622, 626

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(9th Cir. 1987.) Further, the Ninth Circuit notes that “[w]here the issues involved can be

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properly resolved on the basis of the state court record, a district court does not abuse its

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discretion in denying a request for court-appointed counsel.” Hoggard, 29 F.3d at 471.

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At this stage of the proceedings, it does not appear that appointment of counsel is required

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to prevent a due process violation. There is no indication that the issues are too complex or that

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Petitioner is incapable of presenting his claims. From the face of the Petition, filed pro se, it

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appears that Petitioner has a good grasp of this case and the legal issues involved. He has also

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been able to articulate the factual and legal bases of his claim in a clear and coherent manner.

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Indeed, Petitioner has been successful in getting a Petition on file, filing a motion for leave to

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proceed in forma pauperis, and filing the instant motion. Moreover, the Petition in this case was

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pleaded sufficiently to warrant this Court’s order directing Respondent to file an answer or other

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responsive pleading to the Petition. Finally, it appears the Court will be able to properly resolve

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the issues involved on the basis of the state court record. Therefore, the Court finds that the

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interests of justice do not require the appointment of counsel at this time.

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11cv2418-JAH (DHB)

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Accordingly, Petitioner’s Motion for Appointment of Counsel is DENIED without
prejudice.
IT IS SO ORDERED.
DATED: October 29, 2012,

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DAVID H. BARTICK
United States Magistrate Judge

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11cv2418-JAH (DHB)