(HC) Sharp v. Koenig ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY ANDRE SHARP, Case No. 1:20-cv-00139-JDP 12 Petitioner, ORDER DIRECTING CLERK TO FILE PETITION AS A MOTION TO AMEND IN 13 v. RELATED CASE 14 CRAIG KOENIG, ECF No. 1 15 Respondent. ORDER DENYING MOTIONS FOR COUNSEL AND TO STAY 16 ECF Nos. 5, 6 17 ORDER DIRECTING CLERK TO 18 ADMINISTRATIVELY CLOSE CASE 19 20 Petitioner Anthony Andre Sharp, a state prisoner without counsel, seeks a writ of habeas 21 corpus under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review. 22 Under Rule 4 of the Rules Governing Section 2254 Cases, we must examine the habeas corpus 23 petition and order a response to it unless it “plainly appears” that the petitioner is not entitled to 24 relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 25 F.3d 1124, 1127 (9th Cir. 1998). At this early stage, Rule 4 gives “courts an active role in 26 summarily disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 958, 968 27 (9th Cir. 2018) (citation omitted). 28 1 I. Background 2 Prior to filing the instant petition, petitioner sought a writ of habeas corpus from this court 3 in a separate petition. See Sharp v. Koenig, No. 1:19-cv-01241-JDP, ECF No. 1 (E.D. Cal. Sept. 4 6, 2019). That initial petition, which challenged his 2016 conviction for possession of child 5 pornography, remains pending. See id. Petitioner then filed the instant petition on January 23, 6 2020, challenging the same conviction. ECF No. 1. 7 II. Discussion 8 A. Construing second petition as motion to amend 9 Subject to narrow exceptions, “[a] claim presented in a second or successive habeas 10 corpus application under section 2254 that was not presented in a prior application shall be 11 dismissed.” See Goodrum v. Busby, 824 F.3d 1188, 1192 (9th Cir. 2016); 28 U.S.C. 12 § 2244(b)(2). However, when a pro se petitioner “files a new [habeas] petition while his first 13 [habeas] petition remains pending, courts have uniformly held that the new petition cannot be 14 deemed second or successive.” Goodrum, 824 F.3d at 1194. In this situation, the court should 15 “construe [the] new petition as a motion to amend” and “rule on the motion, in accordance with 16 the standards for permitting amendment established by Federal Rule of Civil Procedure 15.” Id. 17 at 1195; see Woods v. Carey, 525 F.3d 886 (9th Cir. 2008) (district court was required to construe 18 the new petition as a motion to amend the first petition because the first petition remained 19 pending and petitioner was proceeding pro se). Therefore, we order the clerk’s office to file the 20 instant petition, ECF No. 1, as a motion to amend in the related case, Sharp, No. 1:19-cv-01241- 21 JDP. 22 B. Motion for counsel 23 Petitioner moves this court for the appointment of counsel. ECF No. 5. A petitioner in a 24 habeas proceeding does not have an absolute right to counsel. See Anderson v. Heinze, 258 F.2d 25 479, 481 (9th Cir. 1958). There are three specific circumstances in which appointment of counsel 26 is required in habeas proceedings. First, appointment of counsel is required for an indigent 27 person seeking to vacate or set aside a death sentence in post-conviction proceedings under 28 28 U.S.C §§ 2254 or 2255. See 18 U.S.C. § 3599(a)(2). Second, appointment of counsel may be 1 required if an evidentiary hearing is warranted. See Rules Governing § 2254 Cases 8(c). Third, 2 appointment of counsel may be necessary for effective discovery. See id. at 6(a). None of these 3 situations is present here. 4 We are further authorized to appoint counsel for an indigent petitioner in a habeas corpus 5 proceeding if we determine that the interests of justice require the assistance of counsel. See 6 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 18 U.S.C. § 3006A(a)(2)(B). However, 7 “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel 8 unless the circumstances of a particular case indicate that appointed counsel is necessary to 9 prevent due process violations.” Chaney, 801 F.2d at 1196. In assessing whether to appoint 10 counsel, we evaluate the petitioner’s likelihood of success on the merits as well as the ability of 11 the petitioner to articulate his claims without counsel, considering the complexity of the legal 12 issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 13 We cannot conclude at this point that counsel is necessary to prevent a due process 14 violation. The legal issues currently involved are not exceptionally complicated, petitioner is able 15 to articulate his claims, and petitioner has not yet demonstrated a great likelihood of success on 16 the merits at this early stage in the case. Accordingly, we find that appointed counsel is not 17 necessary to guard against a due process violation and that the interests of justice do not require 18 the appointment of counsel at this time. 19 C. Motion for stay of restitution and legal costs 20 Petitioner moves this court to stay his state restitution payments and federal legal costs 21 during the pendency of his case. ECF No. 6. To the extent petitioner moves this court to stay a 22 restitution order from his state trial court, we lack the jurisdiction to grant such relief and 23 therefore deny his request. Regarding his requested stay of federal costs, petitioner states no legal 24 authority, and we cannot find any, that would allow us to take the requested action. 25 To the extent petitioner seeks relief from legal costs associated with this case, he has been 26 granted leave to proceed in forma pauperis and is not required to pay filing fees associated with 27 his case. ECF No. 10. Generally, there are few or no additional costs associated with a pro se 28 habeas case. This court will not grant a stay of any future costs petitioner chooses to incur. 1 D. Case is ordered administratively closed 2 The petition in the instant case will be refiled in petitioner’s related case and all other 3 || pending motions are denied. Therefore, we will order the clerk of the court to administratively 4 | close this case. 5 | Il. Order 6 1. The clerk’s office is directed to refile the petition, ECF No. 1, as a motion to amend the 7 petition in Sharp, No. 1:19-cv-01241-JDP. 8 2. Petitioner’s motion for counsel is denied. ECF No. 5. 9 3. Petitioner’s motion to stay restitution and legal costs is denied. ECF No. 6. 10 4. The clerk of the court is directed to close this case. 11 IT IS SO ORDERED. 13 ( Waban Dated: _ February 13, 2020 14 UNIT#D STATES MAGISTRATE JUDGE 15 16 | No. 206. 17 18 19 20 21 22 23 24 25 26 27 28