Casaus v. Hatch

Filing 25

ORDER by Magistrate Judge Kirtan Khalsa DENYING Petitioner's Motion to Appoint Counsel 24 and Setting Deadline for Petitioner to File an Amended Complaint. (nlb)

Case 1:20-cv-01269-WJ-KK Document 25 Filed 01/18/23 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
STEVEN CASAUS,
Petitioner,
v.

Civ. No. 20-1269 WJ/KK

TIMOTHY HATCH,
Respondent.
ORDER DENYING PETITIONER’S MOTION TO APPOINT COUNSEL
AND SETTING DEADLINE FOR PETITIONER TO FILE
AN AMENDED COMPLAINT
THIS MATTER is before the Court on Petitioner Steven Casaus’s pro se “Petition for Writ
of Habeas Corpus (28 U.S.C. §[] 2254)” (Doc. 24) (the “Motion”), filed July 18, 2022, which, for
the reasons discussed below, the Court construes as a motion to appoint counsel. Having reviewed
the Motion, the record, and the relevant law, the Court finds that Petitioner’s Motion is not well
taken and should be DENIED. The Court will fix a deadline for Petitioner to file an amended
petition if he chooses to do so.
I. PROCEDURAL BACKGROUND
On September 15, 2015, a jury in the Second Judicial District Court of the State of New
Mexico found Mr. Casaus guilty of (1) recklessly causing or permitting child abuse resulting in
death (medical neglect); (2) recklessly causing or permitting child abuse not resulting in death or
great bodily harm (burning); (3) tampering with evidence; (4) bribery of N.V.; and (5) bribery of
E.V. (Doc. 11-1 at 25–33); New Mexico v. Casaus, Case No. D-202-CR-2014-1975; New Mexico

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v. Casaus, Case No. D-202-CR-2015-1416.1 The state district court sentenced Mr. Casaus to a
total term of 35 years’ imprisonment, 5 years suspended, for an actual term of 30 years in the
custody of the Department of Corrections. (Doc. 11-1 at 79–82.) Presently, Mr. Casaus is an
inmate at the Northeast New Mexico Detention Facility in Clayton, New Mexico. (Doc. 1 at 2;
Doc. 11-1 at 20–22.)
On December 7, 2020, Mr. Casaus filed a pro se federal habeas petition raising four
grounds for relief (the “Petition”). (Doc. 1.) Respondent answered on August 9, 2021, arguing that
only one of the four grounds is “both fully exhausted and properly before this Court” because Mr.
Casaus’s other claims are either unexhausted, “jurisdictionally off-limits” or “procedurally
barred[.]” (Doc. 11 at 8.) He states he “does not object to allowing Mr. Casaus to dismiss those
claims that are unexhausted and/or not properly before this Court, . . . in favor of moving forward
with the one claim that is both exhausted and procedurally proper[.]” (Id. at 11.) He requests that
the Court “direct Mr. Casaus, should he wish to continue to pursue federal habeas review, to
dismiss [all but the exhausted claim], and file an amended petition based solely on [that claim].”
(Id. at 12.)
On January 4, 2022, Mr. Casaus filed a motion to appoint an attorney, which the Court
denied. (Docs. 14, 15.) After the Court granted four extensions of time to file a reply, Mr. Casaus
filed the present Motion on July 18, 2022. (Doc. 24.) In the Motion, Mr. Casaus asks the Court to
“reconsider appointing me an attorney to move forward in seeking full relief,” and states, “if not,
then I feel I should take Respondent[’]s option in favor of moving forward to dismiss the other
claims and continue to move forward with the one claim that is both exhausted and procedurally

1

These cases were joined for trial. (Doc. 11-1 at 242.)

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proper[.]” (Id. at 3.) He also states, “I feel that it would be [sic] appropriate balance to choose that
which the Court is directing me[,]” and, “That being said, I file and amend this petition based
solely on [the exhausted claim], as recommended by this Court.” (Id.)
II. DISCUSSION
The Court construes Petitioner’s filing titled “Petition for Writ of Habeas Corpus (28
U.S.C. §[] 2254)” as a motion to appoint counsel because that is the only relief specifically
requested in it. The Court will deny the Motion to appoint counsel. As discussed in the Court’s
Order Denying Appointment of Counsel (Doc. 15), prisoners have no “constitutional right to
counsel when mounting collateral attacks upon their convictions.” Pennsylvania v. Finley, 481
U.S. 551, 555 (1987).2 “The decision to appoint counsel is left to the sound discretion of the district
court[.]” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). When considering a motion
for appointment of counsel, the Court considers “the merits of a prisoner’s claims, the nature and
complexity of the factual and legal issues, and the prisoner’s ability to investigate the facts and
present his claims.” Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004).
“The burden is on the applicant to convince the court that there is sufficient merit to his claim to
warrant the appointment of counsel.” Id. (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th
Cir. 1985)).
Beyond a single line in the Motion requesting that the Court reconsider its Order Denying
Appointment of Counsel (Doc. 24 at 3), Petitioner has again failed to demonstrate that his claims
have sufficient merit to warrant the appointment of counsel. Hill, 393 F.3d at 1115. Moreover,

2

By rule, there is a right to appointed counsel in Section 2254 cases where “an evidentiary hearing is warranted” and
the petitioner “qualifies to have counsel appointed under 18 U.S.C. § 3006A.” R. Governing Section 2254 Cases in
U.S. Dist. Ct., R. 8(c). However, at present, the Court has not found that an evidentiary hearing is warranted in this
case, nor does Petitioner argue that such a hearing is necessary.

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Petitioner appears to understand the facts and issues in the case and to be presenting his claims in
a capable manner. See Lucero v. Gunter, 52 F.3d 874, 878 (10th Cir. 1995) (finding no error in the
district court’s denial of a motion to appoint counsel where the plaintiff demonstrated ability to
present his case).
Further, it is not clear from Petitioner’s statements in the Motion whether Petitioner wishes
to amend the Petition voluntarily or whether Petitioner disputes Respondent’s argument his claims
are barred by a failure to exhaust them in state court, procedural rules, or lack of jurisdiction.
Contrary to Petitioner’s statements, the Court has not directed Petitioner to amend the Petition.
Because Petitioner’s statements are ambiguous, the Court will fix a deadline for Petitioner to file
an amended petition if he wants to. If Petitioner chooses not to file an amended petition within the
deadline set below, the Court will consider the Petition and Respondent’s Answer to it.
III. CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Casaus’s motion to appoint counsel. If
he wants to file an amended petition,3 Petitioner must do so no later than Monday,
February 21, 2023.
IT IS SO ORDERED.

____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

3

If an amended petition is filed, it should be titled “Amended Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254.”

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