Bogarin v. Hatton

Filing 36

ORDER denying 27 Petitioner's Second Motion For Appointment of Counsel. Signed by Magistrate Judge Barbara Lynn Major on 10/18/2018. (All non-registered users served via U.S. Mail Service)(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv2793-BTM (BLM)

ANTHONY BOGARIN,

ORDER DENYING PETITIONER'S
SECOND MOTION FOR APPOINTMENT
OF COUNSEL

Petitioner,

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v.

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S. HATTON, Warden,

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[ECF No. 27]

Respondent.

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On July 12, 2018, the Court accepted on discrepancy a motion filed by Petitioner, a state

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prisoner proceeding pro se and in forma pauperis, requesting this Court to appoint counsel. ECF

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No. 27. Having considered Petitioner’s motion and the applicable law, the motion is DENIED

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WITHOUT PREJUDICE for the reasons set forth below.

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In support of his motion, Petitioner alleges that he (1) reads “barely above” a fourth

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grade level, (2) has “borderline intellectual function,” and (3) may have other undiagnosed

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learning and cognitive disabilities. Id. at 1. Petitioner also states that he is dependent upon

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finding a literate inmate to assist him. Id. at 2. Petitioner claims that his “educational and

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cognitive limitations leave him unable to utilize a law library and California does not provide

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‘persons trained in the law’” and cites to Bounds v. Smith, 430 U.S. 817 (1977). ECF No. 27 at

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2 (citing Bounds, 430 U.S. at 828 (requiring prison authorities to provide prisoners “with

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adequate law libraries or adequate assistance from persons trained in the law”)).
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16cv2793-BTM (BLM)

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Petitioner included with his motion a psychological evaluation by a licensed psychologist

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conducted in December 2014 [ECF No. 27 at 4-11] and a page titled “TABE Test Details”

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indicating that it was taken on October 17, 2017 [ECF No. 27 at 12].

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evaluation included, inter alia, the following information: (1) Petitioner was able to “easily

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understand the verbally presented instructions” [ECF No. 27 at 5]; (2) Petitioner reported that

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he quit school after attending one day of the ninth grade [ECF No. 27 at 6]; (3) a “screening

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measure” was administered “to obtain an estimate of [Petitioner’s] intellectual and cognitive

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functioning,” and it showed “borderline intellectual function” [ECF No. 27 at 8-9], and

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(4) Petitioner “has likely experienced low levels of both depressions and anxiety throughout his

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life” [ECF No. 27 at 11]. The TABE Test Details includes a chart indicating that a reading subtest

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showed a “Level and Form” of “M9” and a Grade Equivalent of 04.4. Id. at 12.

The psychological

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Right to Counsel

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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); Habeas Corpus Res. Ctr. v.

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U.S. Dep't of Justice, 816 F.3d 1241, 1244 (9th Cir. 2016) (noting that there is no federal

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constitutional right to appointment of counsel in postconviction collateral attacks on a conviction

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or sentence in state or federal court). However, courts may appoint counsel for financially

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eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 whenever the court

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“determines that the interests of justice so require.”

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Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing 18 U.S.C. § 3006A(a)(2)(B));

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Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (“Indigent state prisoners applying for

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habeas corpus relief are not entitled to appointed counsel unless the circumstances of a

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particular case indicate that appointed counsel is necessary to prevent due process violations.”

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(citations omitted)). Whether or not to appoint counsel is a matter left to the court’s discretion,

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

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Cir. 1986) (citing Rules Governing § 2254 Cases, Rule 8, 28 U.S.C.A. foll. § 2254);

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Jernigan v. Edward, No. 15cv2793-BTM (RBB), 2016 WL 3220089, at *1 (S.D. Cal. June 10,

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2016).
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18 U.S.C. § 3006A(a)(2)(B);

16cv2793-BTM (BLM)

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The court’s discretion to appoint counsel for indigent persons under 28 U.S.C.

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§

1915(e)(1)

may

be

exercised

only

in

“exceptional

circumstances.”

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Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). A finding

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of exceptional circumstances demands “at least an evaluation of the likelihood of the plaintiff’s

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success on the merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light

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of the complexity of the legal issues involved.’”

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789 F.2d 1328, 1331 (9th Cir. 1986)).

Id. (quoting Wilborn v. Escalderon,

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Competency

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In Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005), the Ninth Circuit Court of Appeals

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explained that a district court must hold a competency hearing “when substantial evidence of

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incompetence is presented.” Allen, 408 F.3d at 1153. If a competency hearing is warranted,

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the Court may appoint counsel for the limited purpose of representing the petitioner at the

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competency hearing. Id. (citing Rule 8(c) of the Rules Governing Section 2254 Cases (“If an

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evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner

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who qualifies to have counsel appointed under [18 U.S.C. § 3006A].”)). In determining whether

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Petitioner has presented “substantial evidence of incompetence,” the Court may consider any

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appropriate evidence including sworn declarations by Petitioner or other inmates, sworn

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declarations or letters from treating or prison psychiatrists or psychologist, and relevant medical

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records. Allen, 408 F.3d at 1151-53.

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Discussion

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First, the Court finds that Petitioner has not presented the required exceptional

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circumstances for appointment of counsel.

Thus far, Petitioner has drafted and submitted

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several documents without the assistance of legal counsel. In addition to the instant motion,

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Petition has submitted the original petition for writ of habeas corpus [ECF No. 1], a previous

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motion for appointment of counsel [ECF No. 2], motion for leave to proceed in forma pauperis

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[ECF No. 5], motion for extension of time to file an opposition to motion to dismiss

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[ECF No. 12], an opposition brief to Respondent’s motion to dismiss for lack of exhaustion

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[ECF No. 15], an opposition to the Report and Recommendation and motion for stay and
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16cv2793-BTM (BLM)

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abeyance [ECF No. 20], motion to lift stay and abeyance and resume case [ECF No. 25], and an

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amended petition for writ of habeas corpus [ECF No. 29]. From the Court’s review of these

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documents, Petitioner shows he has a sufficient grasp of his case and the legal issues involved

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and is able to articulate the grounds for his petition.1 The Court also finds that at this stage in

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the proceedings, when Respondent has not yet filed a response to the amended petition,

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Petitioner has not demonstrated a likelihood of success on the merits such that his case should

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be classified as an “exceptional circumstance[].” See Agyeman, 390 F.3d at 1103.

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Second, the Court does not find that the interests of justice require appointment of

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counsel. The Court notes that Petitioner has filed an amended petition arguing the following

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grounds for relief: (1) insufficient evidence to support Petitioner’s attempted burglary conviction,

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(2) denial of due process by admission of Petitioner’s prior convictions of burglary on the issue

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of his intent where the defense admitted intent, and (3) ineffective assistance of counsel at trial.

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ECF No. 29 at 8-20. A district court is required to construe a petition filed by a pro se litigant

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more liberally than a petition drafted by counsel. Knaubert, 791 F.2d at 729. “The district court

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must scrutinize the state court record independently to determine whether the state court

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procedures and findings were sufficient.” Id. (citations omitted). Here, Petitioner has already

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presented claims in his first amended petition that the Court will be able to properly resolve by

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reviewing the state court record independently, and the “additional assistance provided by

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attorneys, while significant, is not compelling.” See id.; Redd v. Trimble, No. 11-cv-1275 LAB

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(WMc), 2011 WL 3844114, at *3 (S.D. Cal. Aug. 30, 2011); Hammond v. Almager, No. 08cv1051

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JM (NLS), 2008 WL 4279417, at *2 (S.D. Cal. Sept. 16, 2008).

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Additionally, Petitioner’s claims that his “educational and cognitive limitations leave him

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unable to utilize a law library and California does not provide ‘persons trained in the law’” do not

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Petitioner’s reliance on another inmate for assistance in drafting his petition does not alter this
analysis. See Montano v. Solomon, No. 2:07-CV-0800 KJN P, 2010 WL 4137476, at *7
(E.D. Cal. Oct. 19, 2010) (denying indigent plaintiff’s motion for appointment of counsel as failing
to present an exceptional circumstance under 28 U.S.C. § 1915(e)(1) where “plaintiff has
adequately presented, albeit through another inmate, the salient factual allegations of this case
. . . as well as the matters now before the court”).
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support a finding that the interests of justice require the appointment of counsel.2

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Marlow v. Frakes, No. C09-5455 RJB/KLS, 2010 WL 3786862, at *14 (W.D. Wash. Aug. 16,

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2010), report and recommendation adopted, No. C09-5455 RJB/KLS, 2010 WL 3786804

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(W.D. Wash. Sept. 23, 2010) (denying motion for appointment of counsel based on petitioner’s

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claims that he is “uneducated, illiterate and must rely on a reader/writer who is not trained in

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the law” because petitioner was able to file appropriate papers to articulate his claims). As

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discussed above, Petitioner has adequately articulated his claims and set forth other legal

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arguments.

See

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To the extent that Petitioner is requesting the appointment of counsel due to a mental

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illness or disability, Petitioner has not submitted the required “substantial evidence” of

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incompetence to warrant a competency hearing. Petitioner’s TABE test results and four-year

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old psychological evaluation do not support a finding that Petitioner’s depression, anxiety,

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borderline intellectual functioning screening result, and level of literacy prevent him from

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understanding and responding to court orders. Additionally, the Court’s review of Petitioner’s

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filings in this matter does not support such a position. As stated above, Petitioner has already

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filed a first amended petition sufficiently articulating his grounds for relief. Accordingly, the

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Court finds there is no basis for a competency hearing and therefore no need to appoint counsel

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to participate in that hearing. See Farley v. Kernan, No. 16cv188 LAB (BGS), 2017 WL 412259,

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at *4 (finding lack of substantial evidence to warrant a competency hearing where petitioner’s

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medical records do not indicate he is unable to comprehend the proceedings or appropriately

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respond to the court, and petitioner’s filings show evidence of the ability to comprehend and

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respond appropriately).

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Petitioner’s citation to Bounds v. Smith, 430 U.S. 817 (1977), is unavailing. ECF No. 27 at 2.
The Ninth Circuit noted that Bounds “does not create an absolute right of counsel for habeas
petitioners,” but instead “requires only that meaningful access to the courts be assured.”
Knaubert, 791 F.2d at 728 n.5. Unlike the situation in Bounds, Petitioner does not argue that a
law library is unavailable. See Bounds, 430 U.S. at 818. “Right of access” to the courts in the
context of Bounds is not at issue here and is not the standard for determining a motion for
appointment of counsel. See Knaubert, 791 F.2d at 728 & n.5.
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16cv2793-BTM (BLM)

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Because the Court finds that Petitioner has not alleged the requisite “exceptional

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circumstances” nor established that the interests of justice require appointment of counsel, the

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Court DENIES without prejudice Petitioner’s motion for appointment of counsel. See LaMere

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v. Risley, 827 F.2d 622, 626 (9th Cir.1987) (finding that district court did not abuse its discretion

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in declining to appoint habeas counsel where district court pleadings showed that petitioner

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understood the issues and was able to present his contentions); Knaubert, 791 F.2d at 729-30

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(finding district court did not abuse its discretion in declining to appoint habeas counsel where

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no evidentiary hearing was necessary).

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IT IS SO ORDERED.

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Dated: 10/18/2018

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16cv2793-BTM (BLM)