(HC) Harris v. Frauenheim ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD BRENT HARRIS, Case No. 1:19-cv-01203-JLT-SAB-HC 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO RECONSIDER, VACATING 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, ADOPTING IN 14 SCOTT FRAUENHEIM, PART FINDINGS AND RECOMMENDATIONS, DENYING IN 15 Respondent. PART PETITION FOR WRIT OF HABEAS CORPUS, APPOINTING COUNSEL, 16 REFERRING MATTER TO MAGISTRATE JUDGE FOR FURTHER 17 FINDINGS AND RECOMMENDATIONS, AND DIRECTING CLERK OF COURT TO 18 SERVE ORDER ON FEDERAL PUBLIC DEFENDER’S OFFICE 19 (Docs. 35, 40, 41) 20 21 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 22 pursuant to 28 U.S.C. § 2254. On July 8, 2022, after extensively considering the entire record, the 23 undersigned adopted the findings and recommendations and ordered that an evidentiary hearing 24 be held on Petitioner’s ineffective assistance of counsel claim for failure to file a notice of appeal 25 and that the remaining claims in the petition be denied. (Doc. 40.) The matter was referred to the 26 magistrate judge to conduct the evidentiary hearing. On July 12, 2022, the magistrate judge issued 27 an order referring the matter to the Federal Defender’s office for the appointment of 28 counsel. (Doc. 42.) Meanwhile, also on July 12, 2022, Respondent filed a motion for 1 reconsideration regarding whether it is appropriate to hold an evidentiary hearing without first 2 definitively resolving the prejudice prong of Petitioner’s ineffective assistance of counsel claim. 3 (Doc. 41.) 4 Given that Respondent did not previously have an opportunity to address the exact line of 5 reasoning presented in the order adopting, the complexity of the prejudice analysis, and the one- 6 sided and inadequate discussion of that issue in the pleadings, the Court will grant the motion for 7 reconsideration in an abundance of caution and vacate the July 8, 2022, order adopting the 8 findings and recommendations. The Court does so in part to permit further, focused briefing on 9 the prejudice issue. 10 Although the magistrate judge has already ordered appointment of counsel for any 11 evidentiary hearing, the Court now reviews whether to appoint counsel to Petitioner at the present 12 stage of the proceedings. There currently exists no absolute right to appointment of counsel in 13 habeas proceedings. See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. 14 Heinze, 258 F.2d 479, 481 (9th Cir. 1958). However, the Criminal Justice Act authorizes the 15 appointment of counsel at any stage of the proceeding for financially eligible persons1 if “the 16 interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). To determine whether to appoint 17 counsel, the “court must evaluate the likelihood of success on the merits as well as the ability of 18 the petitioner to articulate his claims pro se in light of the complexity of the legal issues 19 involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In the present case, the Court 20 has reviewed the record and finds that the interests of justice would be served by the appointment 21 of counsel to assist with briefing of the prejudice issue, provided Petitioner is financially eligible. 22 Accordingly, the Court ORDERS: 23 1. Respondent’s motion for reconsideration (Doc. 41) is GRANTED. 24 2. The July 8, 2022, order adopting the findings and recommendations (Doc. 40) is 25 VACATED. 26 27 1 On September 5, 2019, an order authorizing in forma pauperis status was issued. (Doc. 3.) However, Petitioner did not submit an application to proceed in forma pauperis, and the Court is 28 not in possession of any information regarding Petitioner’s current finances. 1 3. The findings and recommendations issued on December 21, 2021 (Doc. 35) are 2 ADOPTED IN PART. 3 4. The petition for writ of habeas corpus is DENIED EXCEPT for Petitioner’s claim of 4 ineffective assistance of counsel related to the failure to file a notice of appeal. 5 5. This matter is REFERRED to the Federal Public Defender’s Office to appoint 6 counsel for Petitioner if Petitioner is financially eligible for appointment of counsel 7 pursuant to 28 U.S.C. § 3006A. The Federal Public Defender’s Office SHALL 8 COMPLY with the deadlines set forth in the magistrate judge’s previous order (Doc. 9 42). 10 6. This matter is REFERRED to the magistrate judge to set a briefing schedule and 11 issue further findings and recommendations regarding Petitioner’s claim of ineffective 12 assistance of counsel related to the failure to file a notice of appeal. 13 7. The Clerk of Court is DIRECTED to serve a copy of this order on the Federal Public 14 Defender’s Office. 15 16 IT IS SO ORDERED. 17 | Dated: __July 14, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28