Thornton v. Fisher

Filing 45

ORDER Denying 40 Motion to Appoint Counsel. Signed by Magistrate Judge Peter C. Lewis on 8/28/2017. (All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 William Thorton, Case No.: 16cv2492 PCL Petitioner, 13 ORDER: 14 15 DENYING MOTION FOR APPOINTMENT OF COUNSEL (Doc. 40.) v. 16 17 18 Raythel Fisher, Jr., Respondent. 19 20 21 22 23 24 25 26 27 28 Petitioner requests the Court appoint counsel to assist him in his habeas case. (Doc. 40.) The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. See McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“The right to appointed counsel extends to the first appeal of right, and no further”); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996) (noting that there currently exists no constitutional right to appointment of counsel in habeas proceedings); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, courts may appoint counsel for financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 where “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2) (B); Chaney, 801 F.2d at 1196. Whether or not to appoint counsel 1 16cv2492 PCL 1 2 is a matter left to the court’s discretion, unless an evidentiary hearing is necessary. See 3 Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 1986) (explaining that the 4 interests of justice require appointment of counsel when the court conducts an evidentiary 5 hearing on the petition). 6 A court’s discretion to appoint counsel may be exercised only under “exceptional 7 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of 8 exceptional circumstances requires an evaluation of both ‘the likelihood of success on the 9 merits and the ability of the petitioner to articulate his claims pro se in light of the 10 complexity of the legal issues involved.’ Neither of these issues is dispositive and both 11 must be viewed together before reaching a decision.” Id. (quoting Wilborn v. 12 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 13 Petitioner argues that he is unable to represent herself in habeas proceedings 14 because he is untrained in the law and his case is legally complicated. (Doc. 17.) 15 However, “[a]ny pro se litigant certainly would be better served with the assistance of 16 counsel.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (overruled on other 17 grounds, 154 F.3d 952 (9th Cir. 1998)). But a petitioner is only entitled to appointed 18 counsel if he can show “that because of the complexity of the claims he [is] unable to 19 articulate his positions.” Rand, 113 F.3d at 1525. Petitioner has been able to adequately 20 articulate his habeas claims in his Petition. Accordingly, Petitioner’s Motion for 21 Appointment of Counsel is DENIED without prejudice. 22 23 IT IS SO ORDERED. 24 25 DATE: August 28, 2017 26 27 28 Peter C. Lewis United States Magistrate Judge 2 16cv2492 PCL

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