Begin v. Myers

Filing 18

ORDER: Adopting Report and Recommendation 15 ; Denying Motion for Appointment of Counsel 17 . Petition 1 denied, action dismissed. Certificate of appealability denied. Ordered & Signed on 6/20/11 by Judge Owen M. Panner. (kf)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

JOHN PATRICK BEGIN

Civil No. 10-598-CL
Petitioner,

v.
PAULA MEYERS

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

Respondent.
Panner, District Judqe,

Magistrate Judge Mark D. Clarke filed an Amended Report and
Recommendation (#15), and the matter is now before this court.
28 U.S.C. § 636(b) (1) (B), Fed. R. Civ. P. 72(b). In response
to receiving the report, petitioner sent the court a letter
June 3, 2011. In the
several letters to the

ter, petitioner states

ed

he sent

ral Public Defender's Office for the

District of Oregon, requesting representation. There is no record
of a prior request for counsel in the court's docket, and it
1

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

appears petitioner only sent the request to the public defender's
office. Except for the petition and the June 3, 2011 letter,
petitioner has not filed anything with this court. Rather,
petitioner states he has "just been waiting for a federal public
defender to represent [him]."
I construe petitioner's letter as a motion for appointment
of counsel (#17). For the reasons set forth below, petit

r's

motion is DENIED.
Unless an evidentiary hearing is required, the decision to
appoint counsel in a § 2254 proceeding is within the discretion
of the district court.

Terrovona v. Kincheloe, 852 F.2d 424, 429

(9th Cir. 1988); Knaubert v. Goldsmith, 791 F.2d 722, 728
Cir.), cert. denied,

(9th

479 U.S. 867 (1986). This discretion is

exercised in favor of an appointment if the circumstances of the
case indicate that counsel is necessary to prevent due process
violations or if the court determines "'that the interests of
justice so require. ,II Chaney v. Lewis, 801 F.2d 1191, 1196 (9th
Cir. 1986), cert. denied,
§

3006A(g)); Knaubert,

481 U.S. 1023 (1987)

(quoting 18 U.S.C.

791 F.2d at 728-29. Counsel need not be

appointed when a petitioner has a "good understanding of the
issues and the ability to present forcefully and coherently his
contentions." LaMere v. Risley, 827 F.2d 622, 626 (9th
1987).
2 - ORDER DENYING MOTION FOR

APPOINTMENT OF COUNSEL

r.

The interests of justice do not require the appointment of
counsel in this case. The legal issues are not of such complexity
that pet

ioner cannot present them pro se. Further, petitioner

has demonstrated his ability to articulate his grounds for
relief. The pet

ion contains two pages in which petitioner

clearly outlines his claim for relief.

(Petition, 6-7.)

Therefore, petitioner's motion for appointment of counsel (#17)
is DENIED.
Additionally,

I construe pet

to the report. Accordingly,
de novo.

ioner's letter as objections

I have reviewed the

le of this case

See 28 U.S.C. § 636(b) (1) (c); McDonnell Douglas Corp.

v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.
1981). I conclude the report is correct.
As noted in the report, petitioner waived any objections
regarding t

DNA testing when petitioner decided to proceed with

trial rather than delay t

al (and remain in jail) pending

testing. Additionally, not testing the hangar constituted
reasonable trial strategy. As the Assault II charge stemmed from
the marks from the hanger(s) on the victim's arms, the issue of
whose blood was on the hanger was not a critical issue for the
jury. Finally, DNA testing showing the blood came from petitioner
would have been inconsistent with numerous statements petitioner

3 - ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

made to the police, his family, as well as petitioner's general
strategy and testimony at trial.

CONCLUSION
Petitioner's mot
denied. Magistrate Judge
is adopted.
smiss

for appointment of counsel (#17)

is

arke's Report and Recommendation (#15)

The petition (#1)
Because petitioner

is denied and

s action is

s not made a substant

1 showing

of the denial of a constitutional right, a certificate of
appea

ility is DENIED.

See 28 U.S.C. § 2253(2).

IT IS SO ORDERED.

DATED this

Y of

J;ry

2011.

rJ!#IdJid~4OWEN M. PAfJNER
United States District Judge

4 - ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL