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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Julio Julieta,

Case No.: 16cv987-BTM-BGS
Petitioner,

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ORDER DENYING MOTION TO
APPOINT COUNSEL

v.
S. Frauenheim, Warden,
Respondent.

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Petitioner filed a Motion to Appoint Counsel along with his original federal

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petition. (ECF No. 2.) In this motion, Petitioner asserts that he requires representation

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because he only speaks Spanish, and the inmate he used to help him write the motion to

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appoint counsel “does not know what to do behalf of the petitioner in this case.” (Id. at

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1.)

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Every defendant has an absolute right to counsel on direct appeal from a

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conviction, but there is no constitutional right to appointment of counsel in state or

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federal collateral proceedings. Coleman v. Thompson, 501 U.S. 722, 756-57 (1991).

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Nevertheless, when a federal court “determines that the interests of justice so require,

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representation may be provided for any financially eligible person who” is seeking relief

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under 28 U.S.C. § 2254. 18 U.S.C. § 3006A(a)(2)(B); see Bashor v. Risley, 730 F.2d

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1228, 1234 (9th Cir. 1984) (the appointment of counsel to represent an indigent petitioner
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16cv987-BTM-BGS

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collaterally attacking a conviction is discretionary with the court, unless an evidentiary

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hearing is necessary, in which case appointment of counsel is mandatory); see also Rules

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Governing § 2254 Cases, Rule 8(c).

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Courts consider various factors in exercising their discretion to decide whether

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counsel should be appointed. Those factors include the factual or legal complexity of the

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petition, the likelihood of success on the merits, and the petitioner’s understanding of

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issues and capability to investigate and to present the claims himself. See LaMere v.

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Risley, 827 F.2d 622, 626 (9th Cir. 1987) (no abuse of discretion to deny appointment of

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counsel when district court pleadings demonstrated petitioner’s “good understanding of

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the issues and the ability to present forcefully and coherently his contentions”). The

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appointment of counsel is discretionary when no evidentiary hearing is necessary.

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Terrovona v. Kincheloe, 912 F.2d 1176, 1177 (9th Cir. 1990); Knaubert v. Goldsmith,

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791 F.2d 722, 728 (9th Cir. 1986).

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Here, Petitioner has sufficiently represented himself to date, including the filing of

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his Habeas Petition and an opposition to Respondent’s Motion to Dismiss. (ECF Nos. 1,

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11.) Petitioner has extensively articulated his arguments and authority, despite his claims

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that he struggles with the English language.1 Moreover, Petitioner’s claims present no

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unusual factual or legal complexity. The Court finds that the interests of justice do not

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require the appointment of counsel in this case. Petitioner’s motion is DENIED.

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IT IS SO ORDERED.

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Dated: February 23, 2017

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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.”)
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16cv987-BTM-BGS