Slaughter v. White ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 OSSIE LEE SLAUGHTER, Case No. 2:21-1421-JLR-TLF 7 Petitioner, v. ORDER ON MOTION FOR 8 RECONSIDERATION DANIEL WHITE, 9 Respondent. 10 11 This matter comes before the Court on petitioner’s motion for reconsideration. 12 Dkt. 23. For the reasons set forth herein, petitioner’s motion for reconsideration is 13 DENIED. 14 FACTUAL AND PROCEDURAL BACKGROUND 15 Petitioner filed a motion requesting appointment of counsel. Dkt. 18. Petitioner’s 16 motion requested appointment of counsel because he had been transferred to a 17 different correctional facility and did not have access to a law library. Dkt. 18. Petitioner 18 stated that the nearest available law library was in a facility that was under a quarantine 19 due to a COVID 19 outbreak. Dkt. 18. The Court denied petitioner’s motion for 20 appointment of counsel without prejudice and granted petitioner an extension of time to 21 file a reply brief. Dkt. 20. 22 Petitioner has filed a motion for reconsideration of the Court’s Order Denying 23 Appointment of Counsel. Dkt. 23. Petitioner’s motion argues that he is still being denied 24 1 adequate access to the law library because the law library in his housing assignment 2 has limited hours. Dkt. 23. Petitioner states that due to the limited hours he is only able 3 to research a limited number of cases. Dkt. 23. Petitioner’s motion for reconsideration 4 also argues – for the first time – that the Court should hold an evidentiary hearing and 5 appoint counsel for the evidentiary hearing. Dkt. 23. 6 DISCUSSION 7 Motions for reconsideration are generally disfavored under the Court’s local 8 rules: 9 Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior 10 ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. 11 12 Local Rules W.D. Wash. CR 7(h)(1). Such motions are an “extraordinary remedy,” and 13 “should not be granted, absent highly unusual circumstances, unless the district court is 14 presented with newly discovered evidence, committed clear error, or if there is an 15 intervening change in the controlling law.” Kona Enters., Inc. v. Estate of Bishop, 229 16 F.3d 877, 890 (9th Cir. 2000) (internal citations omitted). 17 The Court declines to consider petitioner’s request that the Court order an 18 evidentiary hearing and appoint counsel for the evidentiary hearing. Petitioner argues 19 that the Court should hold an evidentiary hearing to determine whether -- based on the 20 record before the state courts -- the state courts erred by unreasonably applying clearly 21 establish federal law. Dkt. 23. Petitioner raises this argument for the first time in the 22 motion for reconsideration. New evidence, facts or legal authority can only be 23 considered on a motion for reconsideration if the information could not have been 24 1 brought to the Court’s attention earlier with reasonable diligence. Local Rules W.D. 2 Wash. CR 7(h)(1). Petitioner could have raised this issue in the previous motion for 3 appointment of counsel, or the initial petition. Petitioner’s request for an evidentiary 4 hearing is not properly before the Court on petitioner’s motion for reconsideration. 5 The Court may request an attorney to represent an indigent litigant under 28 6 U.S.C. § 1915(e)(1) but should do so only under “exceptional circumstances.” Agyeman 7 v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of 8 exceptional circumstances requires an evaluation of both the likelihood of success on 9 the merits and the ability of the petitioner to articulate his claims pro se in light of the 10 complexity of the legal issues involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331 11 (9th Cir. 1986). These factors must be viewed together before reaching a decision on a 12 request for counsel under § 1915(e)(1). Id. 13 The Court previously determined that this matter does not present exceptional 14 circumstances supporting appointment of counsel. Dkt. 20. Petitioner has not provided 15 any new arguments, legal authority or evidence indicating that petitioner is unable to 16 effectively articulate his grounds for relief in the petition or otherwise present his claims 17 in this action. 18 Additionally, petitioner’s previous motion stated that due to a COVID-19 outbreak 19 he could not access a law library. Dkt. 19. The Court explained that petitioner’s 20 argument regarding lack of access to a law library could be addressed by petitioner’s 21 motion for extension of time. Dkt. 20. Petitioner’s motion for reconsideration states that 22 now petitioner does have access to the law library but is only allowed a limited time to 23 24 1 research case law. Dkt. 23. Petitioner’s concern regarding limited access to the law 2 library can be addressed with a motion for extension of time. 3 CONCLUSION 4 Based on the foregoing discussion, petitioner’s motion for reconsideration (Dkt. 5 23) is DENIED. 6 Dated this 6th day of May, 2022. 7 8 a 9 Theresa L. Fricke United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24