James v. Jackson

Filing 29

ORDER denying 27 Motion to Appoint Counsel, signed by Judge Theresa L Fricke. **3 PAGE(S), PRINT ALL** (Robert James, Prisoner ID: 365127) (ERA)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROBERT E JAMES,
Case No. C16-6063-RJB-TLF

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Petitioner,

ERIC JACKSON,
Respondent.

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ORDER DENYING MOTION TO
APPOINT COUNSEL

v.

Petitioner, who is proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254 in December 2016. Dkts. 1, 5. By order dated April 18, 2017, this matter

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was stayed pending the resolution of petitioner’s state court proceedings. Dkt. 12. Petitioner’s

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state court proceedings are still pending. Petitioner now moves to appoint counsel in this action

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(Dkt. 27).

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Petitioner acknowledges his state court proceedings are still pending. Dkt. 27. It appears

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his petition for discretionary review has been granted by the state supreme court and the matter

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remanded to the Court of Appeals for further proceedings on his personal restraint petition. Dkts.

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26, 27, 28. Petitioner is represented by counsel in his state court proceeding. Id. In his motion for

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appointment of counsel in this matter petitioner contends his claims are numerous and factually

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and legally complex. Dkt. 27. He indicates he intends to request an evidentiary hearing if his

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claims are rejected by the state court and that he believes appointed counsel will be necessary for

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effective utilization of discovery procedures. Id. Petitioner also indicates he is indigent. Id.

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ORDER DENYING MOTION TO APPOINT COUNSEL - 1

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There is no right to 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

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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.
Here, petitioner’s state court proceedings are still pending and there is a possibility that

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he may obtain relief in state court. Furthermore, respondents have not yet filed an answer in this

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case and the matter is currently stayed pending the outcome of state court proceedings. In light

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of the pending state court proceedings, the Court does not find good cause for granting leave to

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conduct discovery in this action at this point and is not yet able to determine whether an

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evidentiary hearing will be required. See Rules Governing Section 2254 Cases in the United

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States District Courts 6(a) and 8(c). Furthermore, petitioner’s filings to date indicate a sufficient

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ability to articulate his claims, and it is difficult for the Court to properly evaluate the likelihood

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of success on the merits until the respondent has filed an answer and the state court record.

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

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in the case. Accordingly, petitioner’s motion is premature at this point.

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ORDER DENYING MOTION TO APPOINT COUNSEL - 2

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As petitioner has not shown appointment of counsel is appropriate at this time, the

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motion for the appointment of counsel (Dkt. 27) is denied without prejudice. The petitioner may

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renew this motion if appropriate at a later time in the proceedings.

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Dated this 19th day of July, 2019.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER DENYING MOTION TO APPOINT COUNSEL - 3