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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO HERNANDEZ, 12 13 14 Civil No. Petitioner, v. TIM V. VIRGA, Warden, 15 Respondent. 12cv1682-BEN (DHB) ORDER DENYING WITHOUT PREJUDICE PETITIONER’S REQUEST FOR APPOINTMENT OF COUNSEL [ECF No. 23] 16 17 Petitioner, Francisco Hernandez, a state prisoner proceeding pro se, has filed a petition 18 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 27, 2012, Petitioner filed 19 a Motion for Appointment of Counsel. (ECF No. 23.) This is Petitioner’s second request for 20 appointment of counsel. Petitioner argues the Court overlooked the exhibits he filed with his prior 21 request and urges the Court appoint counsel. For the reasons set forth below, the Court hereby DENIES 22 Plaintiff’s motion without prejudice. 23 The Sixth Amendment right to counsel does not extend to federal habeas corpus actions 24 by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 25 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 26 However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may 27 obtain representation whenever the court “determines that the interests of justice so require.’” 28 18 U.S.C. § 3006A(a)(2)(B) (2010); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. -1- 11cv2418-JAH (DHB) 1 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); Hoggard v. Purkett, 29 F.3d 469, 2 471 (8th Cir. 1994). 3 The interests of justice require appointment of counsel when the court conducts an 4 evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; 5 Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when no 6 evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728. If 7 the Court determines that an evidentiary hearing becomes necessary in the future, the Court will 8 require appointment of counsel at that time. 9 In the Ninth Circuit, “[i]ndigent state prisoners applying for habeas relief are not entitled 10 to appointed counsel unless the circumstances of a particular case indicate that appointed counsel 11 is necessary to prevent due process violations.” Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d 12 at 728-29. The Ninth Circuit considers the clarity and coherence of a petitioner’s district court 13 pleadings to determine the necessity of appointment of counsel; if clear and understandable, the 14 court typically finds appointment of counsel unnecessary. LaMere v. Risely, 827 F.2d 622, 626 15 (9th Cir. 1987.) Further, the Ninth Circuit notes that “[w]here the issues involved can be 16 properly resolved on the basis of the state court record, a district court does not abuse its 17 discretion in denying a request for court-appointed counsel.” Hoggard, 29 F.3d at 471. 18 The Court has thoroughly reviewed and considered Petitioner’s current and prior motion, 19 including exhibits. However, as the Court previously found, it does not appear that appointment 20 of counsel is necessary at this time to prevent a due process violation. There is no indication that 21 the issues are too complex or that Petitioner is incapable of presenting his claims. From the face 22 of the Petition, filed pro se, it appears that Petitioner has been able to articulate the factual and 23 legal bases of his claim in a clear and coherent manner. Indeed, Petitioner has been successful 24 in getting a Petition on file, filing a motion for leave to proceed in forma pauperis, and filing 25 several motions. (See ECF Nos. 9, 13, 17, and 21) Moreover, the Petition in this case was 26 pleaded sufficiently to warrant this Court’s order directing Respondent to file an answer or other 27 responsive pleading to the Petition. Finally, it appears the Court will be able to properly resolve 28 the issues involved on the basis of the state court record. Therefore, the Court finds that the -2- 11cv2418-JAH (DHB) 1 2 3 4 5 6 7 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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 11cv2418-JAH (DHB)

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