Constance v. Holbrook

Filing 97

ORDER denying Petitioner's 93 Motion to Appoint Counsel. Signed by Judge Richard A. Jones.**6 PAGE(S), PRINT ALL**(Dino Constance, Prisoner ID: 517289)(MW)

Case 3:15-cv-05426-RAJ Document 97 Filed 02/16/21 Page 1 of 6

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DINO CONSTANCE,

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No. 3:15-cv-05426-RAJ
Petitioner,

v.
ORDER DENYING PETITIONER’S
MOTION TO APPOINT COUNSEL

DONALD HOLBROOK,

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Defendant.
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I.

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INTRODUCTION

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This matter comes before the Court on Petitioner Dino Constance’s (“Petitioner”)

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motion for the appointment of counsel. Dkt. # 93. Petitioner filed two subsequent letters

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with updates on the circumstances underlying his request for counsel. Dkt. ## 95, 96.

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Having considered all of Petitioner’s filings and the record, the Court DENIES

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Petitioner’s request.
II.

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BACKGROUND

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This case came before the Court on June 24, 2015, when Petitioner filed a petition

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for writ of habeas corpus under 28 U.S.C. § 2254 as a pro se litigant. Dkt. # 1. Petitioner

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sought relief from his conviction by jury verdict for three counts of solicitation to commit

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murder in the first degree. Dkt. # 57 at 1. He raised twelve grounds for relief. Id. The

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Honorable Karen L. Strombom reviewed all grounds for relief, except one which

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Petitioner moved to withdraw. Id. In a 47-page report and recommendation, Judge

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Strombom recommended denying Petitioner’s claims on the merits and denying the

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issuance of a certificate of appealability. Id. at 46.

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After Petitioner retained counsel, the parties stipulated to an extension of time to

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file objections to the report and recommendation. Dkt. # 59. Petitioner, represented by

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counsel, filed preliminary objections, Dkt. # 60, and later moved to continue the date to

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file objections and to compel transmission of state court documents, Dkt. # 62. The

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Court granted the requests to continue and to compel the state court documents. Dkt.

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# 68. The parties later confirmed the receipt and use of such records in a stipulation:

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[B]ecause the Clark County Superior Court supplied copies of the key exhibits
admitted in the state post-conviction proceedings to counsel for the Petitioner and
counsel for the Respondent . . . [and] counsel for Petitioner has filed these exhibits
and other documents from the state record . . . this Court’s previously issued order
that the Clark County Superior Court Clerk transmit certain exhibits and pleadings
to this Court, Dkt. N. 68, is no longer necessary.
Dkt. # 75.
On June 21, 2016, Petitioner filed objections to the report and recommendation.
Dkt. # 71. After Respondent filed a response to Petitioner’s objections, Dkt. # 76,
Petitioner filed a supplement to objections with additional case law supporting one of his
arguments, Dkt. # 77.
In September 2016, the Court adopted Judge Strombom’s report and
recommendation denying habeas relief, dismissing the petition with prejudice, and
denying the issuance of a certificate of appealability, and judgment was entered. Dkt.
## 78, 79. Petitioner appealed with the Ninth Circuit; his request for a certificate of
appealability was denied on January 30, 2017. Dkt. # 82. Petitioner then filed a petition
for certiorari, Dkt. # 83; his request was denied later that year, Dkt. # 84. Subsequently,

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Petitioner’s counsel’s motion to withdraw as counsel was granted on November 16, 2018.

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Dkt. # 86. Several months later, Petitioner filed a petition for a writ of mandamus, which

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was denied by the Ninth Circuit on August 28, 2019 for failure to demonstrate that the

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case “warrants the intervention of [the Ninth Circuit Court of Appeals] by means of the

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extraordinary remedy of mandamus.” Dkt. # 90. Petitioner again filed a petition for

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certiorari, which was denied on March 23, 2020. Dkt. # 92.

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On August 24, 2020, Petitioner filed this motion to appoint counsel. Dkt. # 93.

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The case, initially assigned to the Honorable Ronald B. Leighton, was subsequently

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reassigned to the undersigned. Dkt. # 94.
III.

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DISCUSSION

As a general matter, a plaintiff does not have a right to counsel in civil cases,

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including federal habeas proceedings. See Storseth v. Spellman, 654 F.2d 1349, 1353

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(9th Cir. 1981) (civil cases); McCleskey v. Zant, 499 U.S. 467, 495, 111 S. Ct. 1454,

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1471, 113 L. Ed. 2d 517 (1991) (federal habeas cases). In federal habeas proceedings, a

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district court may appoint counsel to a financially eligible person when “the interests of

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justice so require.” 18 U.S.C. § 3006(A). In certain cases, “exceptional circumstances”

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may warrant the appointment of counsel for indigent civil litigants pursuant to 28 U.S.C.

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§ 1915(e)(1). Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A

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finding of exceptional circumstances requires an evaluation of both ‘the likelihood of

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success on the merits and the ability of the petitioner to articulate his claims pro se in

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light of the complexity of the legal issues involved.’” Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

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1983)).

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A plaintiff must, however, plead facts that show he has an insufficient grasp of his

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case or the legal issue involved and an inadequate ability to articulate the factual basis of

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her claim. Agyeman, 390 F.3d at 1103. Although most parties would benefit from

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representation by an attorney, that is not the standard for appointment of counsel in a civil

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case. See Rand v. Roland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other

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grounds, 154 F. 3d 952 (9th Cir. 1998) (finding that a pro se litigant may be better served

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with the assistance of counsel is not the test). A plaintiff must show exceptional

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circumstances.

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In his initial motion, Petitioner indicated that he seeks to file a Rule 60(b)(6)

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motion for relief from a judgment but claimed that he needs the Court to appoint counsel

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to do so because the law library at his prison is closed. Dkt. # 93 at 1. In his first

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supplemental letter to the Court, Petitioner again noted that his need for counsel “is tied

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to the closure of the Law Library,” and although the library did reopen, access is

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extremely limited. Dkt. # 95 at 1. He also pointed to his “deteriorating health” as a

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factor “making it more and more difficult to litigate in [his] own best interests.” Id. He

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cited health issues including “high blood pressure, dangerously high triglyceride

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levels . . . mild stroke, raging sleep apnea, type 2 Diabetes, diverticulitis, assaults,

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unrelated fractures, tooth loss due to untreated gum disease, food poisoning, and COVID-

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19.” Id. In his second supplemental letter on this motion, Petitioner reiterated his

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challenge in litigating his case as a result of the COVID-related restrictions on library

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access. Dkt. # 96 at 1. He also noted that writing is challenging “because of documented

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injuries to [his] right hand.” Id. at 1. While he is able to type, his typewriter is broken,

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and he is having trouble getting it repaired and obtaining a new one. Id. at 2.

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Assuming without deciding that Petitioner is indigent and financially eligible to be

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appointed counsel, Petitioner has not demonstrated any exceptional circumstances

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warranting appointment of counsel. First, Petitioner failed to provide any compelling

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evidence or arguments to suggest his case is likely to succeed on the merits. His main

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argument is that “the Court issued its ruling on the case in a void; without ever requiring

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the state to submit the vast majority of the state court record.” Dkt. # 93 at 1. He cites a

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Ninth Circuit case from 2017, Nasby v. McDaniel, 853 F.3d 1049, (9th Cir. 2017), as new

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controlling authority. Id. In this case, the Ninth Circuit held that a district court must

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“order the State to submit the relevant portions of the state court record and, after

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examining them, newly adjudicate [an individual’s] petition.” 853 F.3d at 1054.

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However, as noted above, his former counsel did, in fact, move the Court to order the

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state court to provide such additional records, see Dkt. # 62, and the Court granted the

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motion, see Dkt. # 68. The parties subsequently confirmed receipt of the necessary

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portions of the record. Dkt. # 75.
In his objections to the report and recommendation, Petitioner made no claim that

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he was unable to obtain the necessary records from the state court. Dkt. # 71. In fact,

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he—represented by his counsel—argued the merits of the findings and conclusions of the

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report and recommendation based upon the exhibits and documents obtained from the

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state court. See, e.g., id. at 3 n.5; id. at 8 n.14. Beyond Petitioner’s vague contention that

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“a very large and critically important portion of the state record” was never submitted for

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review, he fails to identify any exculpatory evidence that is contained therein. Dkt. # 93.

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The Court thus finds that Petitioner has not shown a likelihood of success on the merits.
Second, Petitioner’s pro se filings demonstrate that he has sufficient ability to

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articulate legal arguments. The Court finds that the new issue he raises—that significant

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required portions of the state court record were not produced here—is not sufficiently

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complex to warrant the appointment of counsel. In the absence of legal complexity and a

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failure to show a likelihood of success, the Court finds that Petitioner has not

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demonstrated exceptional circumstances warranting the appointment of counsel. While

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Petitioner’s health appears to have deteriorated while in prison, it has not prevented him

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from filing motions with this Court or obtaining advice from attorneys. See id. at 1.

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Limited access to the law library and challenges in repairing a typewriter, though

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inconvenient, do not establish exceptional circumstances.

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II.

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CONCLUSION

For the reasons stated above, Petitioner’s motion for the appointment of counsel is
DENIED. Dkt. # 93.

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DATED this 16th day of February, 2021.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 6