Lewis v. California, State of

Filing 35

ORDER denying 16 Motion for Appointment of Counsel. Signed by Magistrate Judge Jill L. Burkhardt on 10/20/14. (All non-registered users served via U.S. Mail Service)(kas)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Terry Lewis, 11 12 13 14 vs. CASE NO. 13cv3161-LAB (JLB) Petitioner, ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Tim A. Vargas, Warden, Respondent. [ECF No. 16] 15 16 Before the Court is Petitioner’s Motion for Appointment of Counsel. (ECF No. 17 16.) For the reasons set forth below, the Motion is DENIED. Petitioners do not have an absolute right to counsel for habeas corpus actions. 18 19 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Rather, Title 18 20 § 3006A(a)(2) gives the district court discretion to appoint counsel for any habeas 21 corpus petitioner. A court’s discretion to appoint counsel may be exercised only under 22 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). 23 A finding of exceptional circumstances requires an evaluation of both the likelihood 24 of success on the merits and the ability of the petitioner to articulate his claims pro se 25 in light of the complexity of the legal issues involved. Weygandt v. Look, 718 F.2d 26 952, 954 (9th Cir. 1983). 27 Here, although Petitioner alleges that he has limited education and has had 28 psychiatric problems, Petitioner has neither demonstrated a likelihood of success on -1- 13cv3161 1 the merits nor shown that the complexity of the issues involved is sufficient to require 2 appointment of counsel. Over a decade ago, on August 4, 2002, this district court in 3 civil case number 00cv2033-IEG (NLS) dismissed Petitioner’s petition for writ of 4 habeas corpus pursuant to 28 U.S.C. § 2254 for failure to exhaust his state court 5 remedies. (ECF No. 25-8.) At that time, the district court adopted the Report and 6 Recommendation of the magistrate judge, which instructed Petitioner that, before filing 7 another petition in federal court, he must properly present his federal habeas claims to 8 the state courts and refile a federal habeas petition, and he must do so within the statute 9 of limitations for his claims. (See ECF No. 25-7 at 10; ECF No. 25-8 at 5.) Nearly 10 twelve years later, there is no evidence or argument before the Court that Petitioner has 11 filed anything with the state courts since receiving that instruction. 12 Thus, having reviewed Petitioner’s requests for counsel in conjunction with the 13 case record, the Court concludes that appointment of counsel is not warranted in this 14 case. Petitioner’s Motion for Appointment of Counsel (ECF No. 16) is DENIED. 15 16 17 DATED: October 20, 2014 18 19 _________________________ JILL L. BURKHARDT United States Magistrate Judge 20 21 22 23 24 25 26 27 28 -2- 13cv3161

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?