Julieta v. Frauenheim

Filing 14

ORDER Denying 2 Motion to Appoint Counsel. Signed by Magistrate Judge Bernard G. Skomal on 2/23/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Julio Julieta, Case No.: 16cv987-BTM-BGS Petitioner, 12 13 14 ORDER DENYING MOTION TO APPOINT COUNSEL v. S. Frauenheim, Warden, Respondent. 15 16 Petitioner filed a Motion to Appoint Counsel along with his original federal 17 18 petition. (ECF No. 2.) In this motion, Petitioner asserts that he requires representation 19 because he only speaks Spanish, and the inmate he used to help him write the motion to 20 appoint counsel “does not know what to do behalf of the petitioner in this case.” (Id. at 21 1.) 22 Every defendant has an absolute right to counsel on direct appeal from a 23 conviction, but there is no constitutional right to appointment of counsel in state or 24 federal collateral proceedings. Coleman v. Thompson, 501 U.S. 722, 756-57 (1991). 25 Nevertheless, when a federal court “determines that the interests of justice so require, 26 representation may be provided for any financially eligible person who” is seeking relief 27 under 28 U.S.C. § 2254. 18 U.S.C. § 3006A(a)(2)(B); see Bashor v. Risley, 730 F.2d 28 1228, 1234 (9th Cir. 1984) (the appointment of counsel to represent an indigent petitioner 1 16cv987-BTM-BGS 1 collaterally attacking a conviction is discretionary with the court, unless an evidentiary 2 hearing is necessary, in which case appointment of counsel is mandatory); see also Rules 3 Governing § 2254 Cases, Rule 8(c). 4 Courts consider various factors in exercising their discretion to decide whether 5 counsel should be appointed. Those factors include the factual or legal complexity of the 6 petition, the likelihood of success on the merits, and the petitioner’s understanding of 7 issues and capability to investigate and to present the claims himself. See LaMere v. 8 Risley, 827 F.2d 622, 626 (9th Cir. 1987) (no abuse of discretion to deny appointment of 9 counsel when district court pleadings demonstrated petitioner’s “good understanding of 10 the issues and the ability to present forcefully and coherently his contentions”). The 11 appointment of counsel is discretionary when no evidentiary hearing is necessary. 12 Terrovona v. Kincheloe, 912 F.2d 1176, 1177 (9th Cir. 1990); Knaubert v. Goldsmith, 13 791 F.2d 722, 728 (9th Cir. 1986). 14 Here, Petitioner has sufficiently represented himself to date, including the filing of 15 his Habeas Petition and an opposition to Respondent’s Motion to Dismiss. (ECF Nos. 1, 16 11.) Petitioner has extensively articulated his arguments and authority, despite his claims 17 that he struggles with the English language.1 Moreover, Petitioner’s claims present no 18 unusual factual or legal complexity. The Court finds that the interests of justice do not 19 require the appointment of counsel in this case. Petitioner’s motion is DENIED. 20 IT IS SO ORDERED. 21 22 Dated: February 23, 2017 23 24 25 26 1 27 28 The Court has found no legal authority supporting the notion that lack of proficiency in the English language is sufficient to warrant appointment of counsel in a habeas proceeding. See e.g., Ortiz v. Skolnik, 2011 WL 2268508, at *2 (D. Nev. June 7, 2011)(denying motion to appoint counsel based on Petitioner’s assertion that he “speaks primarily Spanish and needs an interpreter for legal proceedings.”) 2 16cv987-BTM-BGS

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