Plechner v. State of Washington

Filing 17

ORDER by Judge Karen L Strombom granting 6 Motion to Stay pending resolution of the state court proceedings; Petitioners motion for counsel is DENIED. Petitioner shall advise the Court within thirty (30) days of receiving a final State court ruling.(MET) cc: petitioner

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 RICHARD PLECHNER, NO. C14-5321 RBL-KLS Petitioner, 10 11 12 ORDER GRANTING MOTION TO STAY AND DENYING MOTION FOR COUNSEL v. DONALD R. HOLBROOK, Respondent. 13 Petitioner Richard Plechner moves to stay his federal habeas petition and for the 14 15 appointment of counsel. Dkt. 6. Respondent Donald R. Holbrook is not opposed to the stay 16 but opposes the appointment of counsel. Dkt. 15. Having reviewed the parties’ submissions 17 and being fully advised, the Court finds that this matter should be stayed pending resolution of 18 Mr. Plechner’s state court proceedings and the motion for counsel denied. 19 DISCUSSION 20 21 22 A. Motion to Stay Mr. Plechner moves this Court to stay consideration of his federal habeas corpus 23 petition pending the disposition in the Washington State courts of his personal restraint 24 petition. Mr. Plechner filed a personal restraint petition on October 30, 2012 in the 25 26 ORDER - 1 1 2 3 Washington Court of Appeals. Dkt. 15, Exhibit 1, Docket, In re Richard Plechner, Court of Appeals Cause No. 44132-2-II. A motion for discretionary review was filed in the Washington Supreme Court on February 5, 2014. Id., Exhibit 2, Docket, In re Richard Plechner, Supreme 4 5 6 Court Cause No. 89868-5. Respondent did not file an answer to Mr. Plechner’s motion for discretionary review and the status was changed to “submitted” on May 16, 2014. Id. Respondent concurs in Mr. Plechner’s request that this Court stay his federal habeas 7 8 corpus petition until Mr. Plechner’s personal restraint petition is fully adjudicated by the 9 Washington courts. The stay will allow for completion of the pending state court proceeding 10 which should be forthcoming. While the state court proceeding is still active, Respondent 11 cannot obtain the court file that is necessary to respond to the federal petition. Respondent 12 13 notes that the proceedings may be relevant to the issues of timeliness under the federal statute 14 of limitations, exhaustion of state remedies, and the merits of Mr. Plechner’s habeas corpus 15 claim. Neither party should be prejudiced by the stay. Thus, the motion shall be granted. 16 B. 17 18 Motion for Counsel Mr. Plechner asks for the appointment of counsel in the title of his motion but does not discuss this request further. Dkt. 6. 19 There is no constitutional right to the appointment of counsel in a habeas proceeding. 20 21 McCleskey v. Zant, 499 U.S. 467, 495 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 22 (1987). If an evidentiary hearing is required, the Court may appoint counsel for a petitioner 23 who qualifies under 18 U.S.C. § 3006(A)(g). Rule 8(c), 28 U.S.C. foll. § 2254. The Court may 24 also appoint counsel at an earlier stage of the proceedings if the interest of justice so requires. 25 18 U.S.C. § 3006(A); see also 21 U.S.C. § 848(q); 28 U.S.C. § 2254(h); Terrovona v. 26 ORDER - 2 1 2 3 Kincheloe, 912 F.2d 1176, 1181-82 (9th Cir. 1990); Dillon v. United States, 307 F.2d 445, 447 (9th Cir. 1962). “In exercising its discretion, the district court should consider the legal complexity of the case, the factual complexity of the case, and the petitioner’s ability to 4 5 6 7 investigate and present his claims, along with any other relevant factors.” Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (citing Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994)). Mr. Plechner fails to show the appointment of counsel is necessary at this time. Mr. 8 Plechner filed his habeas petition and a motion to stay without the assistance of counsel. 9 Respondent has not yet answered the petition. At this time, the case does not raise a legally or 10 factually complex issue and it is likely the petition may be resolved on the existing state court 11 record without an evidentiary hearing. Mr. Plechner does not show a need for the appointment 12 13 of counsel at this stage of the proceedings and the motion is denied. 14 Accordingly, it is ORDERED: 15 (1) 16 17 18 Petitioner’s motion to stay (Dkt. 6) is GRANTED and this matter is STAYED pending resolution of the state court proceedings; Petitioner’s motion for counsel is DENIED. (2) Petitioner shall advise the Court within thirty (30) days of receiving a final State court ruling. 19 (3) The Clerk shall send copies of this Order to Petitioner and counsel for 20 21 22 Respondent. DATED this 19th day of June, 2014. 23 A 24 Karen L. Strombom United States Magistrate Judge 25 26 ORDER - 3

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