Alvarez-Calo v. Obenland ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 WILLIAM MANUEL ALVAREZ- CALO, CASE NO. 3:19-CV-5904-BHS-DWC 11 Petitioner, ORDER 12 v. 13 MIKE OBENLAND, 14 Respondent. 15 The District Court has referred this action filed pursuant to 28 U.S.C. § 2254 to United 16 States Magistrate Judge David W. Christel. Petitioner filed his federal habeas Petition seeking 17 relief from a state court conviction. See Dkt. 3. 18 In the Petition, Petitioner raises sixteen grounds for relief. Dkt. 3. On November 21, 19 2019, Respondent filed an Answer, arguing Petitioner failed to exhaust state remedies with 20 respect to 15 of his 16 habeas claims. Dkt. 7. Respondent argues the petition is “mixed,” 21 containing both exhausted and unexhausted claims, and should be dismissed without prejudice. 22 Dkt. 7. On December 3, 2019, Petitioner filed a Traverse, wherein he disputes his claims are 23 unexhausted. Dkt. 9. Petitioner also seeks the appointment of counsel because he is foreign born, 24 1 does not read or write English, has dyslexia syndrome, and “cannot comprehend as adults do.” 2 Dkt. 9 at 4. The same day, Petitioner also filed a Motion to Appoint Counsel (Dkt. 10) wherein 3 he asserts he has competency issues and cannot intelligently read or write on his own. Dkt. 10 at 4 1.Petitioner alleges he has relied on help from other inmates. Id. at 1-2. Respondent opposes 5 Petitioner’s Motion to Appoint Counsel, arguing the Petition is “mixed” and if the Court 6 determines petitioner may proceed on all 16 grounds raised in the Petition and determines an 7 evidentiary hearing is necessary for one or more of those claims, the Court could appoint counsel 8 at a later time. Dkt. 11. 9 The Court has reviewed the Petition, Answer, State Court Record, Traverse, Motion to 10 Appoint Counsel, and Response, and while Petitioner has not provided declarations or other 11 evidence to support his request for the appointment of counsel, there is evidence in the record he 12 required an interpreter during his police interrogations and requested a competency evaluation 13 during the state court proceedings. See Dkt. 8, Exhibit 11 at 5 at fn. 7 (noting Petitioner’s police 14 interview was “largely in English but Investigator Catlett periodically acted as an interpreter 15 during the interview”); id. at 24 (petitioner argued his trial counsel was ineffective in failing to 16 obtain “Cultural Competency Evaluation” which he argued would have addressed his foreign- 17 born status, lack of understanding of English, and dyslexia syndrome). 18 Before the Court is able to make a determination on Petitioner’s Motion to Appoint 19 Counsel (Dkt. 10), the Court finds supplemental briefing is necessary to obtain additional 20 information and evidentiary support for Petitioner’s contentions he is unable to read, write, and 21 understand English. See Warren v. C.I.R., 282 F.3d 1119, 1120 (9th Cir. 2002) (The Ninth 22 Circuit and Supreme Court precedent allow the Court to sua sponte order supplemental 23 briefing.). 24 1 Accordingly, the Court orders the following: 2 • Petitioner is directed to file, on or before January 17, 2020, a supplement to his Motion to 3 Appoint Counsel. Petitioner should address his allegations he is unable to read, write, and 4 understand English in more detail and explain how he has been able to file numerous 5 pleadings before the Court. Petitioner should also submit declarations or other evidentiary 6 support related to his request for the appointment of counsel and his inability to read, write, 7 and understand English. 8 • Respondent may file a supplemental response to the Motion to Appoint Counsel on or 9 before January 31, 2020. 10 • Petitioner may file a reply to the Motion to Appoint Counsel on or before February 7, 2020. 11 The Clerk of Court is directed to re-note the Motion to Appoint Counsel (Dkt. 10) and the 12 Petition (Dkt. 3) for consideration on February 7, 2020. 13 Dated this 17th day of December, 2019. 14 A 15 David W. Christel 16 United States Magistrate Judge 17 18 19 20 21 22 23 24