Lewis v. Unknown ( 2020 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD R. LEWIS Case No.: 20cv1042-MMA (MSB) 12 Petitioner, ORDER DENYING PETITIONER’S SECOND 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 UNKNOWN, et al., [ECF NO. 10] 15 Respondents. 16 17 18 On August 20, 2020, Petitioner, proceeding pro se, filed a motion asking the Court 19 to appoint counsel. (See ECF No. 10; see also ECF No. 9.) This motion follows the 20 Court’s August 7, 2020 Order Denying Petitioner’s Motion for Appointment of Counsel 21 by less than two weeks. (See ECF No. 8.) Very similar to Petitioner’s prior motion, 22 Petitioner claims that appointment of counsel is justified because “the issues raised in 23 this appeal is complex, and beyond his limited intellectual ability, and understanding.” 24 (Id. at 3.) The motion also states that the inmate who assisted with Petitioner’s request 25 for counsel will not be available to assist with opposing a motion to dismiss. (Id. at 2.) 26 I. LEGAL STANDARD 27 The Sixth Amendment right to counsel does not extend to federal habeas corpus 2 appointment of counsel in postconviction collateral attacks on a conviction or sentence 3 in state or federal court). Courts may, however, appoint counsel for financially eligible 4 habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 when “the interests of 5 justice so require.” See 18 U.S.C. § 3006A(a)(2)(B); Luna v. Kernan, 784 F.3d 640, 642 6 (9th Cir. 2015) (citing 18 U.S.C. § 3006A(a)(2)(B)); Chaney v. Lewis, 801 F.2d 1191, 1196 7 (9th Cir. 1986) (citations omitted) (“Indigent state prisoners applying for habeas corpus 8 relief are not entitled to appointed counsel unless the circumstances of a particular case 9 indicate that appointed counsel is necessary to prevent due process violations.”). 10 Courts have discretion in determining whether to appoint counsel, unless an evidentiary 11 hearing is necessary. See Terrovona v. Kincheloe, 912 F.2d 1176, 1177 (9th Cir. 1990); 12 Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 1986) (citation omitted). 13 Under 28 U.S.C. § 1915(e)(1), courts may exercise their discretion to appoint 14 counsel for indigent civil litigants only in “exceptional circumstances.” Agyeman v. Corr. 15 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 16 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 17 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 18 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 19 789 F.2d 1328, 1331 (9th Cir. 1986)). Both of these factors must be reviewed before 20 deciding whether to appoint counsel, and neither factor is individually dispositive. 21 Wilborn, 789 F.2d at 1331. 22 II. DISCUSSION 23 The Court finds that Petitioner has not established the required exceptional 24 circumstances for appointment of counsel. Petitioner has not presented any new 25 information to change the picture since the Court’s prior order on this issue. Despite his 26 claimed limited intellectual ability, the only evidence before the Court regarding his 27 abilities demonstrates that the Petitioner has sufficiently represented himself to date. 2 that he has a sufficient grasp of his case and the legal issues involved, and that he is able 3 to articulate the grounds for his Petition. See LaMere v. Risley, 827 F.2d 622, 626 (9th 4 Cir. 1987) (affirming district court’s denial of request for appointment of counsel, where 5 pleadings demonstrated petitioner had “a good understanding of the issues and the 6 ability to present forcefully and coherently his contentions.”); see also Taa v. Chase 7 Home Fin., No. 5:11–CV–00554 EJD, 2012 WL 507430, at *2 (N.D. Cal. Feb. 15, 2012) 8 (noting a pro se litigant’s lack of legal training and poverty do not constitute exceptional 9 circumstances, because many other litigants face similar difficulties when proceeding 10 pro se). The Court also concludes that at this stage in the proceedings, Petitioner has 11 not demonstrated a likelihood of success on the merits. See Agyeman, 390 F.3d at 12 1103; Wilborn, 789 F.2d at 1331. 13 Additionally, the interests of justice do not warrant the appointment of counsel in 14 this case. Courts are required to construe a petition filed by a pro se litigant more 15 liberally than a petition drafted by counsel. See Knaubert, 791 F.2d at 729. “The district 16 court must scrutinize the state court record independently to determine whether the 17 state court procedures and findings were sufficient.” Id. (citations omitted). The 18 Petition contains claims that the Court will be able to properly resolve by reviewing the 19 state court record independently, and the “additional assistance provided by attorneys, 20 while significant, is not compelling.” See id. Accordingly, with no changes between 21 Plaintiff’s last motion for appointment of counsel and the current motion, the Court 22 again finds that the appointment of counsel is not warranted. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 Ill. CONCLUSION 2 For the reasons stated above, the Court DENIES Plaintiff's motion for 3 || appointment of counsel. See LaMere, 827 F.2d at 626 (finding that district court did not 4 || abuse its discretion in declining to appoint counsel, where the pleadings established 5 || that petitioner understood the issues and was able to present his contentions). 6 IT IS SO ORDERED. 7 ||Dated: September 1, 2020 — _ 2 FZ — 9 Honorable Michael S. Berg United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28