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