(HC) Ast v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MORGAN RAYMOND AST, Case No. 2:21-cv-01195-KJM-JDP (HC) 12 Petitioner, ORDER: 13 v. (1) DENYING PETITIONER’S MOTIONS TO APPOINT COUNSEL 14 PATRICK COVELLO, (2) DEEMING THE MOTION TO STAY 15 Respondent. WITHDRAWN 16 (3) GRANTING THE MOTION TO AMEND 17 (4) SUBMITTING THE FINDINGS AND RECOMMENDATIONS AT ECF NO. 19 TO 18 THE DISTRICT JUDGE 19 ECF Nos. 19, 24, 25, 27, & 28 20 21 The petition at bar makes three claims: (1) that the trial court erred in giving the jury an 22 ambiguous instruction as to what constituted great bodily injury; (2) that the trial court erred in 23 declining to stay petitioner’s convictions for making criminal threats and violating a domestic 24 violence restraining order; and (3) that his trial counsel rendered ineffective assistance by failing 25 to object to or request a clarifying order for the trial court’s ambiguous instructions. ECF No. 1 at 26 1-6. Only the first two claims were exhausted. On December 1, 2021, with petitioner’s 27 agreement, I recommended that the ineffective assistance claim be dismissed. ECF No. 19, see 28 ECF No. 15 at 2 (“Petition[e]r Morgan Raymond Ast agrees to delete the unexhausted claim” 1 (capitalization altered).). After my recommendations were submitted to the district judge, 2 petitioner apparently changed his mind and asked that he be allowed to return to state court and 3 exhaust his third claim. ECF No. 20. I held my recommendations in abeyance and gave 4 petitioner twenty-one days to file a motion to stay. ECF No. 23. Several motions from petitioner 5 followed: two motions for appointment of counsel, ECF Nos. 24 & 28, a motion to stay, ECF No. 6 25, and a motion to amend, ECF No. 27. 7 I will deny petitioner’s motions for appointment of counsel. A petitioner in a habeas 8 proceeding does not have an absolute right to appointment of counsel. See Nevius v. Sumner, 105 9 F.3d 453, 460 (9th Cir. 1996). However, I am authorized to appoint counsel at any stage of the 10 case “if the interests of justice so require.” See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 11 1986); 18 U.S.C. § 3006A(a)(2)(B). In assessing whether to appoint counsel, I evaluate the 12 petitioner’s likelihood of success on the merits and his ability to articulate his claims, considering 13 the complexity of the legal issues involved. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 14 1983). I cannot conclude at this point that the interests of justice warrant the appointment of 15 counsel. The legal issues involved in this action are not exceptionally complicated, and petitioner 16 has not demonstrated a likelihood of success on the merits. Accordingly, petitioner’s motions to 17 appoint counsel, ECF Nos. 24 & 28, are denied without prejudice. 18 Petitioner’s motion to amend seeks to withdraw his motion to stay, ECF No. 25. ECF No. 19 27 at 1 (“Petitioner Morgan Ast asks the court to disregard him asking for a stay in the last motion 20 and please amend the petition to remove the unexhausted claim.”). Accordingly, the motion to 21 stay is deemed withdrawn and shall be terminated. The motion to amend asks that he be allowed 22 to proceed with the two exhausted claims and that the unexhausted claim be removed. Id. 23 Reinstating my earlier recommendations will effectuate this. Accordingly, I will grant 24 petitioner’s motion to amend and submit the recommendations to the district judge. 25 It is hereby ORDERED that: 26 1. Petitioner’s motions to appoint counsel, ECF Nos. 24 & 28, are DENIED without 27 prejudice. 28 1 2. Petitioner’s motion to stay, ECF No. 25, is deemed WITHDRAWN and the Clerk 2 | of Court is directed to terminate it. 3 3. Petitioner’s motion to amend, ECF No. 27, is GRANTED. 4 4. I submit my earlier findings and recommendations, ECF No. 19, to the district 5 | judge. 6 7 IT IS SO ORDERED. Dated: _ August 2, 2022 Q_——_. 9 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28