Hernandez v. People of the State et al

Filing 24

ORDER Denying without Prejudice Petitioner's 23 Request for Appointment of Counsel. Signed by Magistrate Judge David H. Bartick on 11/29/2012. (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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Civil No.
Petitioner,

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. 23]

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Petitioner, Francisco Hernandez, a state prisoner proceeding pro se, has filed a petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 27, 2012, Petitioner filed

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a Motion for Appointment of Counsel. (ECF No. 23.) This is Petitioner’s second request for

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appointment of counsel. Petitioner argues the Court overlooked the exhibits he filed with his prior

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request and urges the Court appoint counsel. For the reasons set forth below, the Court hereby DENIES

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Plaintiff’s motion without 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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11cv2418-JAH (DHB)

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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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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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The Court has thoroughly reviewed and considered Petitioner’s current and prior motion,

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including exhibits. However, as the Court previously found, it does not appear that appointment

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of counsel is necessary at this time to prevent a due process violation. There is no indication that

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the issues are too complex or that Petitioner is incapable of presenting his claims. From the face

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of the Petition, filed pro se, it appears that Petitioner has been able to articulate the factual and

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legal bases of his claim in a clear and coherent manner. Indeed, Petitioner has been successful

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in getting a Petition on file, filing a motion for leave to proceed in forma pauperis, and filing

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several motions. (See ECF Nos. 9, 13, 17, and 21) 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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11cv2418-JAH (DHB)

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interests of justice do not require the appointment of counsel at this time.
Accordingly, Petitioner’s Motion for Appointment of Counsel is DENIED without
prejudice.
IT IS SO ORDERED.
DATED: November 29, 2012,
DAVID H. BARTICK
United States Magistrate Judge

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11cv2418-JAH (DHB)