Walker v. Arnold

Filing 30

ORDER Denying Without Prejudice 24 Petitioner's Motion for Appointment of Counsel. Signed by Magistrate Judge Barbara Lynn Major on 7/20/2017. (All non-registered users served via U.S. Mail Service)(lrf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16CV2430-LAB (BLM)

CEDRIC E. WALKER,

ORDER DENYING WITHOUT
PREJUDICE PETITIONER’S MOTION
FOR APPOINTMENT OF COUNSEL

Petitioner,

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v.

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ERIC ARNOLD, Warden,

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[ECF No. 24]
Respondent.

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On June 1, 2017, Petitioner, a state prisoner proceeding pro se, filed a request for

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appointment of counsel that was accepted by this Court on discrepancy on June 13, 2017. ECF

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Nos. 23-24. In support of his motion, Petitioner alleges that he is incarcerated and “indigent

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and unable to afford counsel.” ECF No. 24 at 1. Petitioner further asserts that he suffered

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ineffective assistance of counsel from his trial counsel and that denying the instant request

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“would further deprive petitioner as a citizen, free exercise or enjoyment of rights and privilege

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secured to him by constitution or laws of the United States.” Id. at 2. Petitioner notes that his

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case is being reviewed by the innocence project and that he is waiting to be considered for

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resentencing.1 Id. at 2-3. Finally, Petitioner argues that he should be appointed counsel from

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Petitioner received a letter from the prison law office stating that he did not qualify for
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somewhere “other than the public defenders [sic] office. . . . as the public defenders [sic] office

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has rendered ineffective assistance of counsel in all prior representations.” Id. at 3.

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Having considered Petitioner’s motion and the applicable law, and for the reasons set
forth below, the motion is DENIED WITHOUT PREJUDICE.

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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); Nevius v. Sumner, 105 F.3d

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453, 460 (9th Cir. 1996) (noting that there currently exists no constitutional right to appointment

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of counsel in habeas proceedings); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).

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However, courts may appoint counsel for financially eligible habeas petitioners seeking relief

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pursuant to 28 U.S.C. § 2254 whenever the court “determines that the interests of justice so

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require.” 18 U.S.C. § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir.

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1990) (citing 18 U.S.C. § 3006A(a)(2)(B)); Chaney, 801 F.2d at 1196 (“Indigent state prisoners

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applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances

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of a particular case indicate that appointed counsel is necessary to prevent due process

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violations.”). Whether or not to appoint counsel is a matter left to the court’s discretion, unless

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an evidentiary hearing is necessary. Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.

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1986) (explaining that the interests of justice require appointment of counsel when the court

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conducts an evidentiary hearing on the petition.).
The court’s discretion to appoint counsel may be exercised only under “exceptional

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).1 “A finding of

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circumstances.”

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exceptional circumstances requires an evaluation of both the likelihood of success on the merits

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and the ability of the petitioner to articulate his claims pro se in light of the complexity of the

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resentencing, but CDCR Correctional Counselors told Petitioner that he did qualify and just
needed to be patient while the Court worked through a large backlog of cases and that a public
defender would contact him when his case comes up for review. ECF No. 24 at 2.

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The Terrell court cited 28 U.S.C. § 1915(d), but the legislature subsequently renumbered this
section as 28 U.S.C. § 1915(e)(1).
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legal issues involved. Neither of these factors is dispositive and both must be viewed together

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before reaching a decision.” Id. (citations and internal quotation marks omitted).

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Thus far, Petitioner has drafted and submitted several documents without the assistance

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of legal counsel. In addition to the instant motion, Petitioner has submitted a Petition for Writ

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of Habeas Corpus [ECF No. 1], a notice to correct address [ECF No. 8], an order re consent or

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request for reassignment [ECF No. 11], a motion for in forma pauperis filing clarification for the

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Southern District/motion to transfer in forma pauperis status request to the Southern District

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[ECF No. 12-3], an application to proceed in forma pauperis [ECF No. 13], a motion for

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reconsideration of in forma pauperis status [ECF No. 17], a motion to amend the original petition

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[ECF No. 25], a traverse and lodgment [ECF No. 27], and a motion for clarification [ECF No. 29].

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From the Court’s review of these documents, it is clear that Petitioner is able to articulate the

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claims of his case. While it is too early for the Court to determine Petitioner’s likelihood of

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success on the merits, Petitioner fails to establish the requisite “exceptional circumstances”

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warranting the apportionment of counsel. Under such circumstances, a district court does not

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abuse its discretion in denying a state prisoner’s request for appointment of counsel as it is

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simply not warranted by the interests of justice. See LaMere v. Risley, 827 F.2d 622, 626 (9th

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Cir. 1987) (affirming district court’s denial of request for appointment of counsel where pleadings

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demonstrated petitioner had “a good understanding of the issues and the ability to present

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forcefully and coherently his contentions”).

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The Court therefore finds that at this stage of the pleadings, the interests of justice do

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not require the appointment of counsel and that this habeas proceeding does not present

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“exceptional circumstances” justifying the appointment of legal counsel.

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Petitioner’s Motion for Appointment of Counsel is DENIED WITHOUT PREJUDICE.

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Accordingly,

IT IS SO ORDERED.
Dated: 7/20/2017

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