2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 22cv1299-RSH(MSB) 12 Petitioner, ORDER DENYING PETITIONER’S MOTION 13 v. FOR APPOINTMENT OF COUNSEL [ECF NO. 8] 14 ANTHONY C. RAY, et al., 15 Respondents. 16 17 18 On September 26, 2022, Petitioner, a state prisoner proceeding pro se, filed a 19 motion for appointment of counsel. (See ECF No. 8.) In support of his motion, 20 Petitioner claims: (1) he is unable to afford counsel; (2) his case involves complex issues; 21 (3) he is, at times, detained in the dark and “exposed to COVID and violence by other 22 inmates”; (4) he cannot access the law library and other legal materials; (5) he has 23 contacted attorneys with no success of securing representation; (6) he does not receive 24 legal mail; and (7) his case involves “watershed rules” beyond the resources available to 25 him. (Id. at 1-2.) Having considered Petitioner’s motion and the applicable law, the 26 Court DENIES the motion for the reasons set forth below. 27 / / / 2 The Sixth Amendment right to counsel does not extend to federal habeas corpus 3 actions by state prisoners. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1990) (holding 4 that prisoners do not have a constitutional right to counsel when collaterally attacking 5 their convictions); Habeas Corpus Res. Ctr. v. U.S. Dep’t of Justice, 816 F.3d 1241, 1244 6 (9th Cir. 2016) (noting that there is no federal constitutional right to appointment of 7 counsel in postconviction collateral attacks on a conviction or sentence in state or 8 federal court). Courts may, however, appoint counsel for financially eligible habeas 9 petitioners seeking relief pursuant to 28 U.S.C. § 2254 when “the interests of justice so 10 require.” See 18 U.S.C. § 3006A(a)(2)(B); Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 11 2015) (citing 18 U.S.C. § 3006A(a)(2)(B)); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 12 1986) (citations omitted) (“Indigent state prisoners applying for habeas corpus relief are 13 not entitled to appointed counsel unless the circumstances of a particular case indicate 14 that appointed counsel is necessary to prevent due process violations.”). Courts have 15 discretion in determining whether to appoint counsel, unless an evidentiary hearing is 16 necessary. See Terrovona v. Kincheloe, 912 F.2d 1176, 1177 (9th Cir. 1990); Knaubert v. 17 Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 1986) (citation omitted). 18 Under 28 U.S.C. § 1915(e)(1), courts may exercise their discretion to appoint 19 counsel for indigent civil litigants only in “exceptional circumstances.” Agyeman v. Corr. 20 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 21 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 22 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 23 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 24 789 F.2d 1328, 1331 (9th Cir. 1986)). Both of these factors must be reviewed before 25 deciding whether to appoint counsel, and neither factor is individually dispositive. 26 Wilborn, 789 F.2d at 1331. 27 / / / 2 Here, the Court finds that Petitioner has not established the required exceptional 3 circumstances for appointment of counsel. Petitioner contends that he should be 4 appointed counsel because of his indigence, the complexity of the legal issues in his 5 case, and the limited availability of legal resources, among other reasons. (See ECF No. 6 8 at 1-2.) However, he has not shown that these obstacles—which are faced by many 7 habeas petitioners—entitle him to appointed counsel. See Chaney, 801 F.2d 1191 at 8 1196 (holding that a petitioner must show appointed counsel is “necessary to prevent 9 due process violations”). Despite his claimed lack of legal training, access to legal 10 resources, and less than ideal circumstances resulting from being incarcerated, 11 Petitioner has ably represented himself thus far. In addition to the instant motion, 12 Petitioner has submitted the Petition for Writ of Habeas Corpus [ECF No. 1] and motion 13 for leave to proceed in forma pauperis [ECF No. 2] without the assistance of legal 14 counsel. These filings demonstrate Petitioner is able to adequately understand and 15 articulate the grounds for his Petition and support his arguments with exhibits, 16 documentation, and case law. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) 17 (affirming district court’s denial of request for appointment of counsel, where pleadings 18 demonstrated petitioner had “a good understanding of the issues and the ability to 19 present forcefully and coherently his contentions.”); see also Taa v. Chase Home Fin., 20 No. 5:11–CV–00554 EJD, 2012 WL 507430, at *2 (N.D. Cal. Feb. 15, 2012) (noting a pro 21 se litigant’s lack of legal training and poverty do not constitute exceptional 22 circumstances, because many other litigants face similar difficulties when proceeding 23 pro se). The Court also concludes that at this stage in the proceedings, Petitioner has 24 not demonstrated a likelihood of success on the merits. See Agyeman, 390 F.3d at 25 1103; Wilborn, 789 F.2d at 1331. 26 Further, the Court finds that the interests of justice do not warrant the 27 appointment of counsel in this case. Recognizing the difficulties inherent in proceeding 1 || drafted by counsel. See Knaubert, 791 F.2d at 729. “The district court must scrutinize 2 || the state court record independently to determine whether the state court procedures 3 || and findings were sufficient.” Id. (citations omitted). In this case, the Petition contains 4 claims that the Court will be able to properly resolve by reviewing the state court record 5 ||independently, and the “additional assistance provided by attorneys, while significant, is 6 ||not compelling.” Id. If a pro se litigant can articulate his grounds for relief, as Petitioner 7 ||has done here, the second “exceptional circumstances” factor is not met. Accordingly, 8 || the Court finds that the appointment of counsel is not warranted. 9 Ill. CONCLUSION 10 For the reasons stated above, the Court DENIES without prejudice Plaintiff's 11 || motion for appointment of counsel. See LaMere, 827 F.2d at 626 (finding that district 12 || court did not abuse its discretion in declining to appoint counsel, where the pleadings 13 || established that petitioner understood the issues and was able to present his 14 || contentions). 15 IT IS SO ORDERED. 16 Dated: October 4, 2022 _ Sx. 17 4 L <—{|— 18 Honorable Michael S. Berg United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28