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)

Case 3:20-cv-01875-GPC-DEB Document 10 Filed 01/06/21 PageID.1138 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHAUN REGINALD SHAW,

Case No.: 20-cv-1875-GPC (DEB)
Petitioner,

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v.

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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.

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[DKT. NOS. 6, 9]

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Before the Court are Petitioner Shaun Reginald Shaw’s Motions for Enlargement of

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Time and Appointment of Counsel. Dkt. Nos. 6, 9. Petitioner is a state prisoner proceeding

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pro se and in forma pauperis on a Petition for Writ of Habeas Corpus filed pursuant to

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28 U.S.C. § 2254 (“Petition”).

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Good cause appearing, the Court GRANTS in part Petitioner’s Motion for

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Enlargement of Time to file a traverse. Petitioner may file a traverse on or before

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March 5, 2021. The Court DENIES Petitioner’s Motion for Appointment of Counsel

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without prejudice.

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20-cv-1875-GPC (DEB)

Case 3:20-cv-01875-GPC-DEB Document 10 Filed 01/06/21 PageID.1139 Page 2 of 3

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Petitioner requests appointment of counsel because he: (1) is unable to afford

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counsel; (2) has limited education and is untrained in the law; (3) is “without funds to hire

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a private investigator”; and (4) has developmental cognitive disabilities. Dkt. No. 6 at 4, 8.

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Petitioners do not have an absolute right to counsel in habeas corpus actions. See

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Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Nevertheless, by statute, district

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courts have discretion to appoint counsel in habeas proceedings for “any person financially

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unable to obtain adequate representation” when “the interests of justice so require.”

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18 U.S.C. § 3006A(a)(2). “In deciding whether to appoint counsel in a habeas proceeding,

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the district court must evaluate the likelihood of success on the merits as well as the ability

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of the petitioner to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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The Court finds that Petitioner has not demonstrated that appointment of counsel

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will best serve the interests of justice. First, Petitioner argues the Court should appoint him

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counsel because he “is indigent and [im]prisoned and without proper funds to employ

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counsel. . . .” Dkt. No. 6 at 5. Petitioner’s indigent status, however, does not alone entitle

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him to appointment of counsel. The Court must also consider Petitioner’s likelihood of

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success on the merits and his ability to articulate his claims.

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Second, Petitioner contends his low reading skills, education, and cognitive

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functioning compel the court’s discretionary appointment of counsel. Petitioner included

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with his Motion an “Adaptive Support Form” signed by a licensed psychologist on

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September 1, 2020. Dkt. No. 6 at 12. The form indicated that Petitioner requires:

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(1) assistance with “reading and writing CDCR forms”; (2) “simple language and 1 or 2

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step instructions. Ask I/M to explain in his own words to ensure he understands. Repeat

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information if necessary”; (3) “[p]rompt[ing] to complete personal hygiene, brush teeth,

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cell cleaning, shower and laundry procedure; and (4) “extra time and coaching to

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learn/adjust to new tasks and routines.” Id. However, these facts do not establish an

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entitlement to the appointment of counsel in habeas proceedings. See Storey v. Paramo,

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No. 17-cv-23-LAB (BGS), 2017 U.S. Dist. LEXIS 132648, at *5 (S.D. Cal. Aug. 18, 2017)
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20-cv-1875-GPC (DEB)

Case 3:20-cv-01875-GPC-DEB Document 10 Filed 01/06/21 PageID.1140 Page 3 of 3

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(“[T]he mere fact that Petitioner commands a seventh grade education does not establish

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an entitlement to the appointment of counsel.”); Marlow v. Frakes, No. 9-cv-5455-RJB-

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KLS, 2010 WL 3786862, at *14 (W.D. Wash. Aug. 16, 2010) (denying motion for

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appointment of counsel where petitioner claimed that he is “uneducated, illiterate and must

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rely on a reader/writer who is not trained in the law” because petitioner was able to file

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appropriate papers to articulate his claims), report and recommendation adopted, 2010 WL

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3786804 (Sept. 23, 2010); Rodriguez v. Tucker, 04-cv-2808, 2006 U.S. Dist. LEXIS 2976,

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at *4 (D. Ariz. Jan. 25, 2006) (“Petitioner’s low IQ alone, absent a showing of an inability

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to articulate his claims pro se and a showing of a likelihood of success on the merits, does

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not warrant appointment of counsel.”).

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Here, Petitioner has sufficiently represented himself on multiple occasions in this

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action—in his Petition, Motion for Leave to Proceed in forma pauperis, and the instant

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Motions. Dkt. Nos. 1, 2, 6, 9. Furthermore, the Court has reviewed the Petition and cannot

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conclude that Petitioner is likely to succeed on the merits. Therefore, the “interests of

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justice” do not warrant the appointment of counsel in this case at this time. Accordingly,

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the Court DENIES Petitioner’s Motion for Appointment of Counsel without prejudice.

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IT IS SO ORDERED.
Dated: January 6, 2021

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20-cv-1875-GPC (DEB)