(HC) Hawk v. Davey ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID HAWK, Case No. 1:16-cv-00795-JLT-EPG-HC 12 Petitioner, ORDER GRANTING MOTION TO WITHDRAW AS ATTORNEY AND 13 v. DENYING WITHOUT PREJUDICE REQUEST FOR APPOINTMENT OF 14 DAVID DAVEY, et al, COUNSEL 15 Respondents. (ECF No. 52) 16 ORDER DIRECTING PETITIONER TO FILE FIRST AMENDED PETITION 17 WITHIN SIXTY DAYS 18 ORDER DIRECTING CLERK OF COURT TO SERVE ORDER ON PETITIONER AND 19 SEND PETITIONER BLANK IN FORMA PAUPERIS AND § 2254 FORMS 20 21 Petitioner David Hawk is proceeding with a petition for writ of habeas corpus pursuant to 22 28 U.S.C. § 2254. 23 On July 28, 2016, the Court stayed the federal habeas proceedings pending exhaustion of 24 state remedies pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 7). On September 25 27, 2021, the Court lifted the stay and ordered Respondent to file a response to the petition. (ECF 26 No. 39). On January 24, 2022, the Court vacated the briefing schedule to give Petitioner the 27 opportunity to amend his petition given that he has exhausted his claims in state court and the current petition contains outdated facts. (ECF No. 48). 1 On March 3, 2022, counsel for Petitioner filed a motion to withdraw as counsel of record. 2 (ECF No. 49). The Court denied the motion without prejudice for failure to comply with Local 3 Rule 182(d). (ECF No. 50). On April 6, 2022, counsel for Petitioner filed a new motion to 4 withdraw as counsel of record. (ECF No. 52). 5 Local Rule 182(d) provides in pertinent part: 6 [A]n attorney who has appeared may not withdraw leaving the client in propria persona without leave of court upon noticed 7 motion and notice to the client and all other parties who have appeared. The attorney shall provide an affidavit stating the current 8 or last known address or addresses of the client and the efforts made to notify the client of the motion to withdraw. 9 10 Here, Mr. Coleman has notified all parties of the motion to withdraw and has provided the Court 11 with an affidavit stating Petitioner’s current address. (ECF No. 52 at 2). As Mr. Coleman has 12 complied with Local Rule 182(d), and no opposition to the motion has been filed, the Court will 13 grant counsel’s motion to withdraw as Petitioner’s attorney. 14 Mr. Coleman states that he has “been informed that neither [Petitioner] nor his family 15 have any financial resources available to continue to fund further litigation” and requests 16 appointment of new counsel to represent Petitioner in this matter. (ECF No. 52 at 2). There 17 currently exists no absolute right to appointment of counsel in habeas proceedings. See, e.g., 18 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 19 (9th Cir. 1958). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at 20 any stage of the proceeding for financially eligible persons if “the interests of justice so require.” 21 See Rule 8(c), Rules Governing Section 2254 Cases in the United States District Courts, 28 22 U.S.C. foll. § 2254. To determine whether to appoint counsel, the “court must evaluate the 23 likelihood of success on the merits as well as the ability of the petitioner to articulate his claims 24 pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 25 954 (9th Cir. 1983). 26 Here, it is not certain that Petitioner is financially eligible for appointment of counsel, and 27 there is nothing in the motion demonstrating that Petitioner is unable to articulate his claims pro 1 | appointment of counsel is warranted. Accordingly, the request for appointment of new counsel is 2 | denied without prejudice. 3 Accordingly, the Court HEREBY ORDERS that: 4 1. The motion to withdraw as counsel (ECF No. 52) is GRANTED; 5 2. The request for appointment of new counsel is DENIED WITHOUT PREJUDICE; 6 3. Petitioner is DIRECTED to file a First Amended Petition within SIXTY (60) days of the 7 date of service of this order; and 8 4. The Clerk of Court is DIRECTED to: 9 a. Serve this order on Petitioner at his current address: 10 Mule Creek State Prison P.O. Box 409099 11 Ione, CA 95640 12 b. Send Petitioner blank in forma pauperis and § 2254 forms. 13 4 IT IS SO ORDERED. Dated: _ May 16, 2022 [sf ey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28