Farley v. Soto

Filing 36

ORDER denying without prejudice 34 Motion to Appoint Counsel, and Requesting Additional Information from the Parties. Petitioner shall file a document entitled "Additional Evidence of Mental Illness" with accompanying declarations, exhib its, and argument. Petitioner's filing is due no later than August 22, 2016. Respondent shall file a response no later than September 12, 2016. Signed by Magistrate Judge Bernard G. Skomal on 7/15/16. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CRAIG FARLEY,

Civil No.

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Petitioner,
ORDER:

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v.

(1) DENYING WITHOUT PREJUDICE
MOTION FOR APPOINTMENT OF
COUNSEL [ECF No. 34.]; AND

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16cv188 LAB (BGS)

SCOTT KERNAN, Secretary

(2) REQUESTING ADDITIONAL
INFORMATION FROM THE PARTIES

Respondent.

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On June 27, 2016, Petitioner, a state prisoner proceeding pro se, submitted a Petition for

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [ECF No. 1.] Petitioner also filed a request

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to proceed in forma pauperis, which the Court granted on March 8, 2016. [ECF No. 6.] Presently

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before the Court is Petitioner’s motion to appoint counsel. [ECF No. 34.]

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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) (West Supp. 2011); Terrovona v. Kincheloe, 912 F.2d 1176, 1181

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(9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

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In the present case, Petitioner states that he is “housed in the state hospital (D&H) facility

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of the Department of Mental Health being treated by psychiatrist for mental illness.” [ECF No.

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34 at 1.] Petitioner also states he: “suffers from a severe mental disability/disorder”... s on

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numerous anti-depressants and anti-psychotic medication...suffering adverse reactions...

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including confusion, abnormal thinking, abnormal dreams, fatigue, dizziness and

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hallucinations... and is unable to proceed alone.” Id. at 3. Petitioner, therefore, requests

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appointment of counsel. Id. at 4.

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In Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005), the Ninth Circuit held that where a

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petitioner submits “substantial evidence” of his incompetence, the District Court should hold a

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competency hearing to determine whether a petitioner is “competent under an appropriate

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standard for habeas petitioners.” Allen, 408 F.3d at 1153-54. Although the Court did not specify

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what constitutes “substantial evidence” of incompetence or what the “appropriate standard” is,

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it did give some guidance. In Allen, the petitioner submitted his own sworn declaration and a

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declaration from a fellow inmate which stated that Allen was mentally impaired and did not

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understand the Court’s orders. Id. at 1151. He also submitted a letter from a prison psychiatrist

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which stated that Allen was in the Enhanced Outpatient Program (“EOP”) at the prison, had been

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“diagnosed with Chronic Undifferentiated Schizophrenia and [was] taking two psychotropic

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medications,” and a second declaration in support of a motion for appointment of counsel which

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stated that he suffered from a “‘debilitating mental illness that requires a course of treatment that

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includes the use of various psychotropic medications’” and that the mental illness combined with

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the medications “‘severely [hinder] his ability to comprehend or correctly respond to the

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determinations and Orders made by the Court.’” Allen, 408 F.3d at 1151-52. The Ninth Circuit

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concluded that this was sufficient to require the District Court to make a determination as to

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Allen’s competency by appointing counsel and conducting a competency hearing. Allen, 408

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F.3d at 1153-54.

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The information contained in Petitioner’s motion does not rise to the level of “substantial

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evidence” outlined in Allen. In particular, although Petitioner indicated in his motion for

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appointment of counsel that the Court should reference certain exhibits regarding his mental
health reports, list of medications and adverse reaction information, there were no exhibits
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attached to the motion. [ECF No. 34.] Nevertheless, because Petitioner has made specific

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allegations of incompetency, and it is not clear at this time that Petitioner can meet the

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“substantial evidence” threshold enunciated in Allen, the Court will allow additional time for

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Petitioner to submit the omitted exhibits. Accordingly, it is HEREBY ORDERED:

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(1) Petitioner shall file a document entitled “Additional Evidence of Mental Illness” with

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accompanying declarations, exhibits, and argument. The declarations, exhibits, and argument

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should establish the following: (a) Petitioner currently suffers from a mental illness, and (b) that

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mental illness prevents him from being able to understand and respond to Court orders. The

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additional information may include declarations, signed under penalty of perjury, from

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Petitioner, other inmates, medical personnel who have treated Petitioner and current psychiatric

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records. Petitioner’s filing is due no later than August 22, 2016;

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(2) Respondent shall file a response no later than September 12, 2016. The response

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shall include Respondent’s independent investigation into Petitioner’s current competence, as

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well as any legal argument and exhibits Respondent wishes the Court to consider.

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As explained above, in light of the Court’s request for additional information, it is

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premature to determine whether counsel should be appointed to represent Petitioner in this

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action. The motion for appointment of counsel is therefore DENIED without prejudice at this

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time.

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DATED: July 15, 2016

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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