Carroll v. Diaz

Filing 10

ORDER Denying Petitioner's Motion for Reconsideration and Appointment of Counsel (ECF No. 9 ). Signed by Judge Janis L. Sammartino on 11/16/2020. (All non-registered users served via U.S. Mail Service) (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TREMAYNE CARROLL,

Case No.: 20-CV-1651 JLS (MDD
Petitioner,

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ORDER DENYING
PETITIONER’S MOTION
FOR RECONSIDERATION AND
APPOINTMENT OF COUNSEL

v.
RALPH DIAZ; COVELLO; et al.,

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Respondents.
(ECF No. 9)

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Presently before the Court is Petitioner Tremayne Carroll’s Objection to Court’s

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Order/Ruling (Dismissal), Petition for Reconsideration and Appointment of Counsel

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(“Mot.,” ECF No. 9), which the Court has construed as a motion for: (1) reconsideration

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of both the Court’s September 8, 2020 Order denying Petitioner’s in forma pauperis

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(“IFP”) application (the “First Order,” ECF No. 4) and the Court’s September 14, 2020

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Order dismissing Petitioner’s First Amended Petition (“FAP,” ECF No. 5) without

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prejudice and without further leave to amend (the “Second Order,” ECF No. 6); and (2)

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appointment of counsel. Having carefully considered the underlying Orders, Petitioner’s

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arguments, and the relevant law, the Court DENIES Petitioner’s Motion.

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BACKGROUND

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The Court incorporates by reference the factual and procedural background as

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detailed in the Second Order. See generally ECF No. 6. The Clerk entered judgment in
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this action on September 14, 2020. See ECF No. 7. Petitioner filed the instant Motion on

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September 28, 2020. See generally ECF No. 9.

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LEGAL STANDARDS
I.

Reconsideration

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Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or

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amend its judgment. In the Southern District of California, a party may apply for

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reconsideration “[w]henever any motion or any application or petition for any order or

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other relief has been made to any judge and has been refused in whole or in part.” Civ.

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L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, new or

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different facts and circumstances which previously did not exist. Id.

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“A district court may grant a Rule 59(e) motion if it ‘is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation

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marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en

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banc)) (emphasis in original). Reconsideration is an “extraordinary remedy, to be used

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sparingly in the interests of finality and conservation of judicial resources.” Kona Enters.,

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Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant

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or deny a motion for reconsideration is in the “sound discretion” of the district court.

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Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229

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F.3d at 883). A party may not raise new arguments or present new evidence if it could

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have reasonably raised them earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St.

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Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

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II.

Appointment of Counsel

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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. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Even

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so, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may

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receive court-appointed counsel when “the interests of justice so require,” as determined

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by the court. 18 U.S.C. § 3006A(a)(2)(B); Luna v. Kernan, 784 F.3d 640, 642 (9th Cir.
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2015); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). The interests of

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justice require appointment of counsel when the court conducts an evidentiary hearing on

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the petition. Id. at 1177; Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986).

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Appointment of counsel is discretionary when no evidentiary hearing or discovery is

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necessary. Terrovona, 912 F.2d at 1177.

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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. A due process violation may occur in the absence of counsel if the issues involved

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are too complex for the petitioner. Id. In addition, the appointment of counsel may be

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necessary if the petitioner is of such limited education as to be incapable of presenting his

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claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). When the issues involved

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in a section 2254 habeas action can be properly resolved on the basis of the state court

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record, a district court does not abuse its discretion in denying a motion for appointment

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of counsel. Travis v. Lockhart, 787 F.2d 409, 411 (8th Cir. 1986).

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ANALYSIS

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Per Petitioner’s Motion, “[he] respectfully objects to Court[’]s order dismissing case

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when Petitioner, only hours ago, received both 09/08/20 and 09/14/20 rulings at the same

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time.” Mot. at 1. As to the First Order, Petitioner claims he “exhausted every avenue to

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try to obtain (6) month trust statement for IFP but was blocked by CDCR’s many

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circumvention measures.” Id. Petitioner claims he cited his previously filed cases “to show

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there[’]s already an IFP in place.” Id. at 2.

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While the Court is sympathetic to the difficulties Petitioner has faced in obtaining

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the certified copy of his trust fund account statement, the fact remains that it is a

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requirement for this Court to approve his application. Section 1915(a)(2) of Title 28 of the

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United States Code provides:

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A prisoner seeking to bring a civil action or appeal a judgment in
a civil action or proceeding without prepayment of fees or

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security therefor, in addition to filing the affidavit filed under
paragraph (1), shall submit a certified copy of the trust fund
account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the
complaint or notice of appeal, obtained from the appropriate
official of each prison at which the prisoner is or was confined.

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The word “shall” in this provision is mandatory. See Firebaugh Canal Co. v. United States,

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203 F.3d 568, 573–74 (9th Cir. 2000) (“The term “shall” is usually regarded as making a

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provision mandatory, and the rules of statutory construction presume that the term is used

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in its ordinary sense unless there is clear evidence to the contrary.”) (citing Bennett v.

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Spear, 520 U.S. 154 (1997)). Accordingly, the failure to submit the statutorily required

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documentation is fatal to Petitioner’s request. See, e.g., Arroyo v. United States, 876 F.

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Supp. 1054, 1058 (E.D. Wis. 1995) (“[Petitioner] has failed to provide a Certificate of

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Prisoner Accounts signed by prison authorities.

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determine whether he meets the statutory poverty requirement under § 1915(a).”). And,

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while the Court appreciates that Petitioner may have been granted IFP status in other cases,

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that does not excuse the requirement that Petitioner submit the required application and

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supporting documentation in this action to verify his present financial position, which could

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have changed since the time Petitioner last was granted IFP status. The Court, therefore,

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did not commit clear error in denying without prejudice Petitioner’s IFP application, and

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Petitioner has raised no other grounds entitling him to reconsideration of the IFP denial.

The Court, therefore, is unable to

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As to the Second Order, Petitioner’s Motion revisits some of the merits arguments

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from his FAP. Mot. at 2–3. But Petitioner presents no new evidence or newly decided

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controlling case law that could not have been raised earlier; accordingly, reconsideration

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is not merited on these grounds. Nor was the Court’s dismissal without prejudice to refiling

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but without further leave to amend clearly erroneous. In an August 25, 2020 Order, the

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Court thoroughly explained why “Petitioner’s claims, as pled, are not cognizable in habeas

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review.” ECF No. 2 at 3–4. Indeed, the Court noted that “Petitioner was instructed in his

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previous habeas case that claims which fall outside the core of habeas corpus must be
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brought, if at all, in a civil rights case under 42 U.S.C. § 1983, and he filed the currently-

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pending 42 U.S.C. § 1983 case referenced in the instant Petition.” Id. (citations omitted).

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The August 25, 2020 Order plainly stated:

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If Petitioner wishes to challenge the loss of time or credits
affecting the length or fact of his custody as a result of actions
taken while he was housed in this District, he must . . . file a First
Amended Petition on a court-approved form that sets forth a
cognizable habeas corpus claim.

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Id. at 5. Petitioner does not claim to have not received the August 25, 2020 Order before

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filing his FAP, yet the FAP, “[i]n direct defiance of this Court’s original Order of dismissal,

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. . . seeks to challenge the denial of [Petitioner’s] Proposition 36 and 57 challenges to his

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sentence imposed in the Los Angeles Superior Court and conditions of his confinement but

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not the loss of custody credits that occurred in this District.” Second Order at 2–3. The

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Court thus dismissed the FAP, “[b]ecause [it] does not present a cognizable federal habeas

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claim for which venue lies in this District.” Id. at 4. This dismissal was “without prejudice

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to Petitioner pursuing either his challenge to his sentence of conviction in the Central

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District or his conditions of confinement claims in a civil rights action.” Id. In light of

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Petitioner’s failure to cure the defects identified on August 25, 2020, and the fact that

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Petitioner had been repeatedly informed of these defects, including in a prior action, the

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Second Order’s dismissal was not clearly erroneous.

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Accordingly, having again reviewed the filings and relevant law, the Court

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concludes that it did not commit clear error in either denying Petitioner’s IFP application

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or dismissing his FAP without prejudice but also without further leave to amend. The

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Court therefore DENIES Petitioner’s request that the Court reconsider the First and Second

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Orders.

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As to appointment of counsel, Petitioner states that “this Court is denying an ADA

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inmate/patient with hearing, visual, mobility and mental health/EOP issues appointment of

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counsel.” Id. at 2. He states that “Petitioner is not a lawyer yet this Court cites rules and

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///
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cases he can[’]t access to begin to understand—in 99% part due to retaliation and 1% due

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to no law library until COVID-19 is no longer an issue.” Id.

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Again, the Court is sympathetic to the difficulties Petitioner identifies, but the Court

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cannot grant Petitioner’s motion to appoint counsel, as his request is moot given the

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dismissal of Petitioner’s FAP without leave to amend and the Court’s refusal to reconsider

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that request. See, e.g., Bjorstrom v. Kernan, No. 16CV151-MMA (WVG), 2017 WL

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553377, at *2 (S.D. Cal. Feb. 10, 2017) (denying as moot motion to appoint counsel where

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petition was “subject to dismissal”); Hasan v. Cate, No. CIV. 10-1416 W BGS, 2011 WL

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2470583, at *1 (S.D. Cal. May 31, 2011) (recommending motion to appoint counsel be

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denied as moot where “the case is to be dismissed”), report and recommendation adopted

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sub nom. Hasan v. Cates, No. 10-CV-1416 W BGS, 2011 WL 2470495 (S.D. Cal. June 22,

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2011).

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Even were the motion not moot, the Court would deny Petitioner’s request on the

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record presently before it, as Petitioner has not shown that he is financially eligible for

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court-appointed counsel.

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appointed counsel, but Petitioner has not established his indigence, as he has failed to

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provide the documentation necessary for this Court to grant his IFP application. Hearn v.

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Schriro, No. CV 08-448-PHX-MHM, 2011 WL 1237543, at *17 (D. Ariz. Mar. 31, 2011)

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(denying motion to appoint counsel where “the Court is without sufficient information to

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determine if Petitioner is indigent,” and ordering Petitioner “to document his financial

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condition”). Accordingly, the Court also DENIES Petitioner’s request to appoint counsel.

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CONCLUSION

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In light of the foregoing, the Court DENIES Petitioner’s Motion (ECF No. 9).

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IT IS SO ORDERED.

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Only indigent prisoners are potentially entitled to court-

Dated: November 16, 2020

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