Davidson v. Sullivan

Filing 8

ORDER Denying Petitioner's 3 Motion for Appointment of Counsel. Signed by Magistrate Judge Mitchell D. Dembin on 3/24/2017. (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 RYAN PATRICK DAVIDSON,
Petitioner,

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13 v.
14 W.J. SULLIVAN,
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Respondent.

Case No.: 17cv421-H (MDD)
ORDER DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL
[ECF No. 3]

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Petitioner, proceeding pro se and in forma pauperis (“IFP”) with a

19 Petition for Writ of Habeas Corpus [ECF No. 1] filed pursuant to 28 U.S.C. §
20 2254, and currently incarcerated at the California Correctional Institute
21 State Prison in Tehachapi, California, has submitted a motion in which he
22 requests that the Court appoint counsel for him [Doc. No. 3]. In support,
23 Petitioner argues counsel should be appointed to assist him in the case
24 because Petitioner “is a layperson, indigent, and as expressed by the lower
25 courts, the success of this petition is hinged on factual development which
26 will require an expert witness, and other resources currently outside of the
27 incarcerated petitioner’s means.” (ECF No. 3 at 1).
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17cv421-H (MDD)

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Having considered the request submitted by Petitioner and the

2 applicable law, and for the reasons set forth below, Petitioner’s Motion for
3 Appointment of Counsel is DENIED without prejudice.
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The Sixth Amendment right to counsel does not extend to federal

5 habeas corpus actions by state prisoners. See McClesky v. Zant, 499 U.S. 467,
6 495 (1991); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996) (noting that
7 there currently exists no constitutional right to appointment of counsel in
8 habeas proceedings); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).
9 However, courts may appoint counsel for financially eligible habeas
10 petitioners seeking relief pursuant to 28 U.S.C. § 2254 where “the interests of
11 justice so require.” 18 U.S.C. § 3006A(a)(2)(B); Chaney, 801 F.2d at 1196.
12 Whether or not to appoint counsel is a matter left to the court’s discretion,
13 unless an evidentiary hearing is necessary. See Knaubert v. Goldsmith, 791
14 F.2d 722, 728-30 (9th Cir. 1986) (explaining that the interests of justice
15 require appointment of counsel when the court conducts an evidentiary
16 hearing on the petition).
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A court’s discretion to appoint counsel may be exercised only under

18 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
19 1991). “A finding of exceptional circumstances requires an evaluation of both
20 the ‘likelihood of success on the merits and the ability of the petitioner to
21 articulate his claims pro se in light of the complexity of the legal issues
22 involved.’ Neither of these issues is dispositive and both must be viewed
23 together before reaching a decision.” Id. (quoting Wilborn v. Escalderon, 789
24 F.2d 1238, 1331 (9th Cir. 1986)).
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Petitioner has failed to demonstrate to the Court that appointment of

26 counsel is warranted in this case. Having reviewed Petitioner’s filings in this
27 case, the Court finds that Petitioner has sufficient grasp of his claims for
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17cv421-H (MDD)

1 habeas relief and the legal issues involved in those claims, and also is able to
2 articulate those claims adequately without assistance. See LaMere v. Risley,
3 827 F.2d 622, 626 (9th Cir. 1987) (affirming district court’s denial of request
4 for appointment of counsel where pleadings demonstrated petitioner had a
5 “good understanding of the issues and the ability to present forcefully and
6 coherently his contentions”). The Court also finds that Petitioner has not
7 established a likelihood of success on the merits. See Terrell, 935 F.2d at
8 1017. Under these circumstances, the Court concludes that this habeas
9 proceeding does not present “exceptional circumstances” justifying the
10 appointment of legal counsel. Id. Accordingly, Petitioner’s Motion for
11 Appointment of Counsel is DENIED without prejudice.
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IT IS SO ORDERED.

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14 Dated: March 24, 2017
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17cv421-H (MDD)