Plechner v. Haynes

Filing 30

ORDER DENYING MISCELLANEOUS MOTIONS. Petitioner's Motions (Dkts. 21 , 26 , 27 , 28 ) are denied. (See Order for details.) Signed by Judge David W. Christel.**4 PAGE(S), PRINT ALL**(Richard Plechner, Prisoner ID: 975117)(CJS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICHARD PLECHNER,
Petitioner,

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v.

ORDER DENYING
MISCELLANEOU6 MOTIONS

RONALD HAYNES,

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CASE NO. 3:24-CV-5187-TMC-DWC

Respondent.

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Presently before the Court are Petitioner Richard Plechner’s four motions requesting the

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Court to order amicus briefing, appoint counsel and a guardian ad litem, and grant miscellaneous

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relief. Dkts. 21, 26, 27, 28. After consideration of the relevant record, the Court finds Petitioner’s

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Motions (Dkt. 21, 26, 27, 28) should be denied.

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I.

Motion for Court to Order Amicus Briefs (Dkt. 21)

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Petitioner filed a “Motion for Court to Order Two (2) Amicus-Curiae Briefs Regarding

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Narrow Issue of R.C.W. 9A.44.020 being Unconstitutional on its Face.” Dkt. 21. Petitioner states

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that the Court must order two amicus briefs to be researched and submitted to the Court

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regarding the “very complicated and narrow issue of whether or not the state can secure a

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constitutionally permissible conviction on the testimony of a single witness or victim without

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any other evidence at all.” Id. at 1. Petitioner appears to be referencing his claim in Ground 1 that

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asserts there was insufficient evidence to convict him of Indecent Liberties. See Dkt. 6.
ORDER DENYING MISCELLANESOU MOTIONS
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Respondent has filed a response to the Petition asserting Petitioner failed to exhaust Ground 1.

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See Dkt. 15. If Petitioner has failed to exhaust Ground 1 and this ground is now procedurally

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barred from federal review, there is no need for briefing on the constitutionality issue. Further,

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no amici-party has sought leave to file an amicus brief. Rather, Petitioner is requesting the Court

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order unidentified individuals to file amicus briefs. As there is no motion seeking leave to file an

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amicus brief and as Petitioner has not shown an amicus brief will be of assistance to the Court at

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this time, his Motion (Dkt. 21) is denied.

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II.

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Petitioner again requests Court-appointed counsel. Dkt. 28. As the Court has previously

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stated (Dkts. 14, 22), there is no right to appointed counsel in cases brought under 28 U.S.C. §

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2254 unless an evidentiary hearing is required or such appointment is necessary for the effective

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

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

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F.2d 1129, 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules

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

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

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at 954. In deciding whether to appoint counsel, the Court “must evaluate the likelihood of

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

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of the complexity of the legal issues involved.” Id.

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Motion for Appointment of Counsel (Dkt. 28)

Here, the Court does not find good cause for granting leave to conduct discovery; thus,

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counsel is not necessary to effectively utilize discovery. Further, the Court has not determined an

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evidentiary hearing is required. See Rules Governing Section 2254 Cases in the United States

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District Courts 6(a) and 8(c). Moreover, Petitioner articulated his grounds for relief raised in the

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ORDER DENYING MISCELLANESOU MOTIONS
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Petition, the grounds are not factually or legally complex, and Petitioner has not shown he is

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likely to succeed on the merits of this case. As such, Petitioner has not shown the interests of

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justice require the Court to appoint counsel at this time. For these reasons, the Motion for

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Appointment of Counsel (Dkt. 28) is denied.

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III.

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Petitioner has also filed a Motion requesting the appointment of a guardian ad litem. Dkt.

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27. In the Motion, Petitioner states that his constitutional rights are being violated. Id. He states

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he is incompetent. Id. Based on his filing, it appears Petitioner is complaining of the conditions

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of his confinement and the alleged constitutional violations are unrelated to this § 2254 action.

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See id.

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Motion for the Appointment of a Guardian Ad Litem (Dkt. 27)

Regardless, the Court notes Petitioner has not shown he is entitled to a guardian ad litem.
Federal Rule of Civil Procedure 17(c) states, in relevant part:
A minor or an incompetent person who does not have a duly appointed
representative may sue by a next friend or by a guardian ad litem. The court must
appoint a guardian ad litem – or issue another appropriate order – to protect a minor
or incompetent person who is unrepresented in an action.

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“The purpose of Rule 17(c) is to protect an incompetent person’s interests in prosecuting or
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defending a lawsuit. Once the court determines that a pro se litigant is incompetent, the court
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generally should appoint a guardian ad litem under Rule 17(c).” Davis v. Walker, 745 F.3d 1303,
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1310 (9th Cir. 2014) (internal citations omitted). Here, while Petitioner states he is incompetent,
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he has failed to provide sufficient evidence showing he is incompetent and cannot litigate this
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case. See Dkt. 27. As Petitioner does not request a guardian ad litem for this case and as
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Petitioner has not provided substantial evidence showing he is incompetent, his Motion
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requesting the appointment of a guardian ad litem (Dkt. 27) is denied.
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ORDER DENYING MISCELLANESOU MOTIONS
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IV.

Motion for Miscellaneous Relief (Dkt. 26)

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Petitioner filed a “Motion to Prevent New Evidence Spoliation (or/and) Spoliation of

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Evidence and Motion for this Court to Reconsider Past Orders and to Add or Amend 1st or 2nd

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Petition.” Dkt. 26. In the Motion, Petitioner appears to provide argument to the Court related to

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“new” evidence. In the Motion, Petitioner argues that photographs show the victim in his

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criminal case lied on the stand. He does not clearly explain the relief he is seeking from this

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Court. As the Motion does not clearly explain the relief requested, the Motion (Dkt. 26) is

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denied.

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V.

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In several filings, Petitioner, in a conclusory manner, requests the Court allow him to

Leave to Amend

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amend his Petition. See Dkts. 21, 26. Petitioner initiated this case in March of 2024. Dkt. 1. On

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May 16, 2024, Petitioner attempted to amend his petition in a conclusory sentence in a motion

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requesting court-appointed counsel. Dkt. 11. On June 4, 2024, the Court notified Petitioner that

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his request did not comply with the Federal or Local Rules. Dkt. 14. The Court stated that, if

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Petitioner sought to amend his petition, he was required to file a motion to amend explaining

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why leave to amend should be granted with a copy of a complete proposed amended petition on

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the § 2254 form the Court provides. Id. Petitioner’s conclusory requests to amend his petition do

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not meet these requirements. Accordingly, any request for leave to amend is denied.

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VI.

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For the above stated reasons, Petitioner’s Motions (Dkts. 21, 26, 27, 28) are denied.

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Dated this 22nd day of November, 2024.

Conclusion

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David W. Christel
United States Magistrate Judge

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ORDER DENYING MISCELLANESOU MOTIONS
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