Shaw v. Sherman et al

Filing 10

ORDER Granting Petitioner's Motion for Enlargement of Time; and Denying Petitioner's Motion for Appointment of Counsel; (ECF Nos. 6 , 9 ). Signed by Magistrate Judge Daniel E. Butcher on 1/6/21. (All non-registered users served via U.S. Mail Service)(dlg)

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Case 3:20-cv-01875-GPC-DEB Document 10 Filed 01/06/21 PageID.1138 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAUN REGINALD SHAW, Case No.: 20-cv-1875-GPC (DEB) Petitioner, 12 13 v. 14 ORDER: STU SHERMAN, et al., (1) GRANTING PETITIONER’S MOTION FOR ENLARGEMENT OF TIME; AND (2) DENYING PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL Respondents. 15 16 17 18 [DKT. NOS. 6, 9] 19 20 Before the Court are Petitioner Shaun Reginald Shaw’s Motions for Enlargement of 21 Time and Appointment of Counsel. Dkt. Nos. 6, 9. Petitioner is a state prisoner proceeding 22 pro se and in forma pauperis on a Petition for Writ of Habeas Corpus filed pursuant to 23 28 U.S.C. § 2254 (“Petition”). 24 Good cause appearing, the Court GRANTS in part Petitioner’s Motion for 25 Enlargement of Time to file a traverse. Petitioner may file a traverse on or before 26 March 5, 2021. The Court DENIES Petitioner’s Motion for Appointment of Counsel 27 without prejudice. 28 1 20-cv-1875-GPC (DEB) Case 3:20-cv-01875-GPC-DEB Document 10 Filed 01/06/21 PageID.1139 Page 2 of 3 1 Petitioner requests appointment of counsel because he: (1) is unable to afford 2 counsel; (2) has limited education and is untrained in the law; (3) is “without funds to hire 3 a private investigator”; and (4) has developmental cognitive disabilities. Dkt. No. 6 at 4, 8. 4 Petitioners do not have an absolute right to counsel in habeas corpus actions. See 5 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Nevertheless, by statute, district 6 courts have discretion to appoint counsel in habeas proceedings for “any person financially 7 unable to obtain adequate representation” when “the interests of justice so require.” 8 18 U.S.C. § 3006A(a)(2). “In deciding whether to appoint counsel in a habeas proceeding, 9 the district court must evaluate the likelihood of success on the merits as well as the ability 10 of the petitioner to articulate his claims pro se in light of the complexity of the legal issues 11 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 12 The Court finds that Petitioner has not demonstrated that appointment of counsel 13 will best serve the interests of justice. First, Petitioner argues the Court should appoint him 14 counsel because he “is indigent and [im]prisoned and without proper funds to employ 15 counsel. . . .” Dkt. No. 6 at 5. Petitioner’s indigent status, however, does not alone entitle 16 him to appointment of counsel. The Court must also consider Petitioner’s likelihood of 17 success on the merits and his ability to articulate his claims. 18 Second, Petitioner contends his low reading skills, education, and cognitive 19 functioning compel the court’s discretionary appointment of counsel. Petitioner included 20 with his Motion an “Adaptive Support Form” signed by a licensed psychologist on 21 September 1, 2020. Dkt. No. 6 at 12. The form indicated that Petitioner requires: 22 (1) assistance with “reading and writing CDCR forms”; (2) “simple language and 1 or 2 23 step instructions. Ask I/M to explain in his own words to ensure he understands. Repeat 24 information if necessary”; (3) “[p]rompt[ing] to complete personal hygiene, brush teeth, 25 cell cleaning, shower and laundry procedure; and (4) “extra time and coaching to 26 learn/adjust to new tasks and routines.” Id. However, these facts do not establish an 27 entitlement to the appointment of counsel in habeas proceedings. See Storey v. Paramo, 28 No. 17-cv-23-LAB (BGS), 2017 U.S. Dist. LEXIS 132648, at *5 (S.D. Cal. Aug. 18, 2017) 2 20-cv-1875-GPC (DEB) Case 3:20-cv-01875-GPC-DEB Document 10 Filed 01/06/21 PageID.1140 Page 3 of 3 1 (“[T]he mere fact that Petitioner commands a seventh grade education does not establish 2 an entitlement to the appointment of counsel.”); Marlow v. Frakes, No. 9-cv-5455-RJB- 3 KLS, 2010 WL 3786862, at *14 (W.D. Wash. Aug. 16, 2010) (denying motion for 4 appointment of counsel where petitioner claimed that he is “uneducated, illiterate and must 5 rely on a reader/writer who is not trained in the law” because petitioner was able to file 6 appropriate papers to articulate his claims), report and recommendation adopted, 2010 WL 7 3786804 (Sept. 23, 2010); Rodriguez v. Tucker, 04-cv-2808, 2006 U.S. Dist. LEXIS 2976, 8 at *4 (D. Ariz. Jan. 25, 2006) (“Petitioner’s low IQ alone, absent a showing of an inability 9 to articulate his claims pro se and a showing of a likelihood of success on the merits, does 10 not warrant appointment of counsel.”). 11 Here, Petitioner has sufficiently represented himself on multiple occasions in this 12 action—in his Petition, Motion for Leave to Proceed in forma pauperis, and the instant 13 Motions. Dkt. Nos. 1, 2, 6, 9. Furthermore, the Court has reviewed the Petition and cannot 14 conclude that Petitioner is likely to succeed on the merits. Therefore, the “interests of 15 justice” do not warrant the appointment of counsel in this case at this time. Accordingly, 16 the Court DENIES Petitioner’s Motion for Appointment of Counsel without prejudice. 17 18 IT IS SO ORDERED. Dated: January 6, 2021 19 20 21 22 23 24 25 26 27 28 3 20-cv-1875-GPC (DEB)

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