Grenning v. Key

Filing 37

ORDER APPOINTING COUNSEL, signed by Magistrate Judge David W. Christel. The Court appoints the Federal Public Defender for the Western District of Washington (FPD) as limited counsel for Petitioner. The FPD's representation of Petitioner is l imited to matters related to the production and review of any supplemental record. The Clerk shall provide a copy of this Order to: Michael Filipovic, Federal Public Defender. The Clerk is also directed to re-note the Habeas Petition for August 25, 2017. **4 PAGE(S), PRINT ALL**(Neil Grenning, Prisoner ID: 872019)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NEIL GRENNING,

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Petitioner,

CASE NO. 3:16-CV-05983-RJB-DWC
ORDER APPOINTING COUNSEL

v.
JAMES KEY,
Respondent.

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

17 States Magistrate Judge David W. Christel. Petitioner Neil Grenning filed his federal habeas
18 Petition seeking relief from a state court conviction. See Dkt. 8. After reviewing the relevant
19 state court decisions and the record before this Court, the Court determined portions of the state
20 court record essential for this Court’s review were not included in the record. Dkt. 28. The Court
21 directed Respondent to provide the Court with a proposed method which would allow the Court
22 and Petitioner to view a supplemental record containing copies of evidence necessary for review
23 of Petitioner’s nine grounds for relief. Id.
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ORDER APPOINTING COUNSEL - 1

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On June 23, 2017, Petitioner filed a letter addressed to Respondent’s attorney stating he

2 does not want to view any images at this time and does not believe it is necessary to review the
3 supplemental record. Dkt. 29. But, he reserved his right to review the supplemental record, if it
4 becomes absolutely necessary. Id. Respondent filed objections to the Order on June 26, 2017,
5 requesting the District Judge modify or vacate the Order. Dkt. 30.
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In light of Petitioner’s letter and Respondent’s objections, the Court directed the parties

7 to provide briefing addressing: Whether counsel should be appointed to represent Petitioner for
8 the limited purpose of resolving issues involving the production and review of the requested
9 supplemental record. Dkt. 32.
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On July 20, 2017, both Petitioner and Respondent filed briefs. Dkt. 35, 36. Petitioner

11 requests counsel be appointed for the limited purpose of resolving issues related to the
12 production and review of any supplemental record. See Dkt. 35. Respondent states he does not
13 oppose the limited appointment of counsel in this case. Dkt. 36.
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There is no right appointed counsel in cases brought under 28 U.S.C. § 2254 unless an

15 evidentiary hearing is required or such appointment is “necessary for the effective utilization of
16 discovery procedures.” See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United States v.
17 Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 F.2d 1129,
18 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules Governing
19 Section 2254 Cases in the United States District Courts 6(a) and 8(c). The Court may appoint
20 counsel “at any stage of the case if the interest of justice so require.” Weygandt, 718 F.2d at 754.
21 In deciding whether to appoint counsel, the Court “must evaluate the likelihood of success on the
22 merits as well as the ability of the petitioner to articulate his claims pro se in light of the
23 complexity of the legal issues involved.” Id.
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ORDER APPOINTING COUNSEL - 2

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Here, the Court has requested a supplemental record which contains sensitive material.

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See Dkt. 28. Petitioner’s incarceration makes viewing the materials very difficult. See Dkt. 30.

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For example, the materials are currently under seal in the Pierce County Superior Court and

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contain sensitive content which cannot be copied. Therefore, the Court finds the interests of

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justice require the Court appoint counsel for the limited purpose of representing Petitioner on all

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matters related to the production and review of any supplemental record.

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The Court appoints the Federal Public Defender for the Western District of

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Washington (FPD) as limited counsel for Petitioner. The FPD’s representation of Petitioner is

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limited to matters related to the production and review of any supplemental record. The Clerk

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shall provide a copy of this Order to: Michael Filipovic, Federal Public Defender, Federal Public

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Defender’s Office, 1601 Fifth Avenue, Suite 700, Seattle, Washington 98101.

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As Petitioner is now represented by counsel, the Court orders the following:
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The parties are directed to provide the Court with a proposed method which will allow the

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Court and Petitioner’s counsel to review a supplemental record. The supplemental record

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must contain copies of all evidence related to Petitioner’s nine grounds for relief, including

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photographs, audio recordings, and physical evidence, which was submitted to the jury and

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relied on by the state court. 1

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The proposed method for reviewing the supplemental record must be provided to the Court
on or before August 25, 2017.

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After the parties have submitted the proposed method for review of the supplemental
record, the Court will enter a scheduling order setting dates for: (1) the implementation of

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The Court will accept briefing from Petitioner’s counsel regarding whether any photographs, audio
recordings, or physical pieces evidence are irrelevant to the Court’s decision and may be excluded from the
supplemental record.

ORDER APPOINTING COUNSEL - 3

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the proposed method for review of the supplemental record; and (2) filing supplemental

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briefing.

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The Clerk of Court is directed to re-note the Petition for August 25, 2017. 2

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Dated this 25th day of July, 2017.

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A

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David W. Christel
United States Magistrate Judge

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The Court notes the Petition will likely be re-noted after the Court revolves the issues regarding the filing

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ORDER APPOINTING COUNSEL - 4