Polina v. Montgomery et al

Filing 14

ORDER Denying Petitioner's Motion For Appointment Of Counsel (Dkt # 13 ). Signed by Magistrate Judge Louisa S Porter on 12/12/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERONIMO POLINA,

Case No.: 16-cv-02133-WQH (DHB)
Petitioner,

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ORDER DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL

v.
W.L. MONTGOMERY, Warden,
Respondent.

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(ECF NO. 13)

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On December 8, 2016, Petitioner filed

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a Motion for Appointment of Counsel. (ECF No. 13.)

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Previously, on October 24, 2016, Petitioner filed a Motion for Appointment of

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Counsel (ECF No. 9) that was denied without prejudice by this Court on November 1,

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2016. (ECF No. 11.)

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16-cv-02133-WQH (DHB)

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The Sixth Amendment right to counsel does not extend to federal habeas corpus

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actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis,

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801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.

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1986). However, financially eligible habeas petitioners seeking relief pursuant to 28

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U.S.C. § 2254 may obtain representation whenever the court “determines that the interests

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of justice so require.” 18 U.S.C. § 3006A(a)(2)(B) (2014); Terrovona v. Kincheloe, 912

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F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

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The interests of justice require appointment of counsel when the court conducts an

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evidentiary hearing on the petition. Terrovona, 912 F.2d at 1181; Knaubert, 791 F.2d at

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728; Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when

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no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1181 (citing Bashor, 730 F.2d

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at 1234); Knaubert, 791 F.2d at 728. If the Court determines that an evidentiary hearing

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becomes necessary in the future, the Court will require appointment of counsel at that time.

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In the Ninth Circuit, “[i]ndigent state prisoners applying for habeas relief are not

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entitled to appointed counsel unless the circumstances of a particular case indicate that

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appointed counsel is necessary to prevent due process violations.” Chaney, 801 F.2d at

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1196 (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970)); Knaubert, 791 F.2d at

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728-29. The Ninth Circuit considers the clarity and coherence of a petitioner’s district

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court pleadings to determine the necessity of appointment of counsel; if clear and

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understandable, the court typically finds appointment of counsel unnecessary. See LaMere

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v. Risely, 827 F.2d 622, 626 (9th Cir. 1987). Further, the Eighth Circuit notes that “[w]here

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the issues involved can be properly resolved on the basis of the state court record, a district

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court does not abuse its discretion in denying a request for court-appointed counsel.”

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Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994); see Terrovona, 912 F.2d at 1181-82.

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At this stage of the proceedings, it does not appear that appointment of counsel is

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required to prevent a due process violation. There is no indication that the issues are too

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complex or that Petitioner is incapable of presenting his claims. Also, there has been no

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change in the case since the Court denied Petitioner’s first request for appointment of
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16-cv-02133-WQH (DHB)

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counsel last month that would warrant a different finding now. Petitioner claims lack of

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knowledge of the law. However, that is not an exceptional circumstance that warrants

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appointment of counsel. Further, as previously noted, based on the face of the Petition, it

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appears that Petitioner has a good grasp of this case and the legal issues involved, and at

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this point, it appears the Court will be able to properly resolve the issues involved on the

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basis of the state court record. Therefore, the Court finds that the interests of justice do not

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require the appointment of counsel at this time.

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Accordingly, Petitioner’s Motion for Appointment of Counsel is DENIED without
prejudice.
IT IS SO ORDERED.
Dated: December 12, 2016
_________________________
LOUISA S PORTER
United States Magistrate Judge

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16-cv-02133-WQH (DHB)