McDaniel v. Haynes

Filing 13

ORDER denying without prejudice the 8 Motion to Appoint Counsel, signed by Magistrate Judge J Richard Creatura.**3 PAGE(S), PRINT ALL**(Agyei McDaniel, Prisoner ID: 761891)(CMG)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 AGYEI JUMAANE MCDANIEL, Petitioner, 11 12 13 14 CASE NO. 3:18-cv-05023-RBL-JRC ORDER DENYING MOTION FOR APPOINTED COUNSEL v. RONALD HAYNES, Respondent. 15 16 The District Court has referred this petition for a writ of habeas corpus to United States 17 Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. § 18 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner Agyei 19 Jumaane McDaniel filed the petition pursuant to 28 U.S.C. § 2254. He has now requested that 20 the Court grant him appointed counsel. However, petitioner has not yet demonstrated the 21 exceptional circumstances necessary to justify the appointment of counsel. Therefore, the Court 22 denies petitioner’s motion without prejudice. He may request an attorney at a later date if and 23 when he can demonstrate the necessary exceptional circumstances. 24 ORDER DENYING MOTION FOR APPOINTED COUNSEL - 1 1 2 BACKGROUND Petitioner originally filed his habeas petition in January of 2018. Dkt. 1. He alleges that 3 his 14th Amendment protections were violated when he was charged with second degree murder 4 instead of manslaughter, that he was not permitted to present a complete defense, and that he 5 received ineffective assistance of counsel both when trial counsel did not request a lesser- 6 included charge instruction and when trial counsel failed to object to allegedly impermissible 7 propensity evidence. Dkts. 5, 6. The Court directed the Clerk to serve the petition (Dkt. 7) and 8 respondent entered notice of appearance (Dkt. 9, 10). Respondent has not yet filed a response to 9 the petition and the deadline for filing a response has not yet passed. 10 DISCUSSION 11 Petitioner requests that the Court appoint counsel for him because he is indigent and his 12 family has attempted, without success, to secure pro bono counsel. In habeas proceedings, there 13 is no constitutional right to appointment of counsel because the proceeding is civil, not criminal, 14 in nature. See Terrovona v. Kincheloe, 912 F.3d 1176, 1181 (9th Cir. 1990). The Court may 15 request an attorney to represent indigent civil litigants under 28 U.S.C. § 1915(e)(1), but should 16 do so only under “exceptional circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 17 1101, 1103 (9th Cir. 2004). “A finding of exceptional circumstances requires an evaluation of 18 both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims 19 pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 20 1328, 1331 (9th Cir. 1986). 21 Here, plaintiff has not yet demonstrated the exceptional circumstances required for the 22 Court to appoint counsel. It is still very early in petitioner’s habeas proceeding. Respondent has 23 not yet filed a response to petitioner’s habeas petition, and the deadline for filing a response has 24 ORDER DENYING MOTION FOR APPOINTED COUNSEL - 2 1 not yet passed. Because it is so early, the Court cannot yet determine the likelihood of 2 petitioner’s success. Further, petitioner has thus far effectively articulated his claims. Therefore, 3 the Court denies petitioner’s motion without prejudice. 4 5 CONCLUSION For the reasons stated above, the Court denies petitioner’s motion for appointment of 6 counsel (Dkt. 8) without prejudice. Petitioner may request appointed counsel at a later date if and 7 when petitioner can demonstrate the exceptional circumstances necessary for the Court to grant 8 his request. 9 Dated this 2nd day of April, 2018. A 10 11 J. Richard Creatura United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING MOTION FOR APPOINTED COUNSEL - 3

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