Frando v. Gore ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL FRANDO, Case No.: 21-cv-01434-JLS-KSC 12 Petitioner, ORDER DENYING RENEWED 13 v. MOTION TO APPOINT COUNSEL 14 BILL GORE, et al., [Doc. No. 10] 15 Respondents. 16 17 Petitioner Daniel Frando (“petitioner”) is a state prisoner proceeding pro se on a 18 Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. See Doc. No. 1. 19 Before the Court is petitioner’s renewed Motion to Appoint Counsel. Doc. No. 10. For the 20 reasons stated below, petitioner’s motion is DENIED. 21 The Court denied petitioner’s previous motion to appoint counsel [Doc. No. 5], 22 finding that he had shown neither that that he was financially unable to obtain 23 representation nor “made an adequate showing that the interests of justice require[d]” that 24 counsel be appointed to assist him. Doc. No. 6 at 2. In the present motion, petitioner 25 asserts that counsel should be appointed to him due to his indigence, his “inability to 26 represent [him]self effectively,” and his lack of ready access to legal research materials. 27 Doc. No. 10 at 1-2. 28 /// 1 As the Court stated in its prior order, there is no absolute right to counsel in habeas 2 corpus actions. See Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence 3 v. Florida, 549 U.S. 327, 336-37 (2007)). The Court may in its discretion appoint counsel 4 for “any person financially unable to obtain adequate representation” when “the interests 5 of justice so require.” 18 U.S.C. § 3006A(a)(2). 6 Petitioner cites to his concurrently-filed motion to proceed in forma pauperis – in 7 which he represents that he is currently unemployed and without income due to his 8 incarceration, has no assets, and relies on contributions from his family for his day-to-day 9 expenses in prison – to demonstrate his inability to afford counsel.1 See Doc. No. 8 at 2- 10 3. Based on this record, the Court finds that petitioner has demonstrated he is financially 11 unable to secure the services of an attorney. 18 U.S.C. § 3006A(a)(2). This factor weighs 12 in favor of appointing counsel to represent petitioner. 13 However, indigence alone is not a sufficient basis for the appointment of counsel. 14 As the Court has explained, “[i]n deciding whether to appoint counsel in a habeas 15 proceeding, the district court must evaluate the likelihood of success on the merits as well 16 as the ability of the petitioner to articulate his claims pro se in light of the complexity of 17 the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Here, 18 petitioner claims that he needs a lawyer because as “an inmate in a county jail” he is 19 “unable to get reference book[s], research materials and specific forms” needed to litigate 20 his case. Doc. No. 10 at 2. Petitioner specifically complains that the in forma pauperis 21 form he submitted was not readily available in the law library at George F. Bailey Detention 22 Facility (“Bailey”), where he is currently incarcerated. See id. 23 The Court finds that the fact that petitioner is in custody, lacks legal training and 24 does not have unlimited access to legal research resources are difficulties faced by all 25 incarcerated litigants and do not require the appointment of counsel to assist petitioner. The 26 27 28 1 || Court notes that despite his complaints of the “unavailability” of “resource books and law 2 ||references,” petitioner has thus far demonstrated his ability to effectively advocate on his 3 behalf by filing the habeas corpus petition, two motions for the appointment of 4 ||counsel, and a motion to proceed in forma pauperis. The Court therefore concludes that 5 || petitioner is capable of presenting and litigating his claims.” 6 Furthermore, the case is still in its early stages and there is no basis on the record 7 || before the Court to find that plaintiff is likely to succeed on the merits. Petitioner has not 8 ||shown otherwise. 9 For the foregoing reasons, the Court finds that petitioner has not demonstrated that 10 appointment of counsel will best serve the interests of justice. Petitioner’s Motion to 11 || Appoint Counsel [Doc. No. 10] is accordingly DENIED. Plaintiff may renew his request 12 || for counsel if he can make an adequate showing that the requirements of 18 U.S.C. § 13 3006A(a)(2) are satisfied. Petitioner is cautioned, however, that a motion that merely 14 ||repeats the arguments already presented to the Court will not be granted. 15 IT IS SO ORDERED. 16 Dated: October 8, 2021 YX) 17 Mfficae 18 Hori. Karen S. Crawford United States Magistrate Judge 19 20 21 22 23 24 25 26 |} 27 Tf petitioner is unable access the law library or otherwise requires additional time to meet the Court’s 28 deadlines, he may make such a request to the Court. The Court will grant reasonable requests for additional time for good cause shown.