Kissler v. Gilbert

Filing 14

ORDER denying 9 Motion to Appoint Counsel by Judge David W. Christel.**2 PAGE(S), PRINT ALL**(Joel Kissler, Prisoner ID: 627367)(MET)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JOEL EVERETT KISSLER,

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Petitioner,

CASE NO. 3:15-CV-05859-BHS-DWC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.
MARGRET GILBERT,
Respondent.

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The District Court has referred this action filed under 28 U.S.C. § 2254 to United States

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Magistrate Judge David W. Christel. Currently pending in this action is Petitioner’s Motion for

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Appointment of Counsel. Dkt. 9.

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There is no right appointed counsel in cases brought under 28 U.S.C. § 2254 unless an

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evidentiary hearing is required or such appointment is “necessary for the effective utilization of

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discovery procedures.” See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United States v.

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Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 F.2d 1129,

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1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules Governing

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Section 2254 Cases in the United States District Courts 6(a) and 8(c). The Court may appoint
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 1

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counsel “at any stage of the case if the interest of justice so require.” Weygandt, 718 F.2d at 754.

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In deciding whether to appoint counsel, the Court “must evaluate the likelihood of success on

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the merits as well as the ability of the petitioner to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id.

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Here, the Court directed service of the Petition and the time for filing an answer has not

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run. See Dkt. 7. As an answer has not been filed, the Court does not find good cause for granting

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leave to conduct discovery and has not determined an evidentiary hearing will be required. See

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Rules Governing Section 2254 Cases in the United States District Courts 6(a) and 8(c).

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Furthermore, Petitioner effectively articulated his grounds for relief raised in the Petition, the

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grounds are not factually or legally complex, and it is difficult to determine the likelihood of

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success on the merits without an answer and the state court record. See Dkt. 6. Thus, Petitioner

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has not shown the interest of justice requires the Court to appoint counsel at this stage in the

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case.

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As Petitioner has not shown appointment of counsel is appropriate at this time, the
Motion for the Appointment of Counsel is denied without prejudice.
Dated this 30th day of December, 2015.

A

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David W. Christel
United States Magistrate Judge

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ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL - 2