Free Order on Motion to Appoint Counsel - District Court of California - California

Case 3:07-cv-02139-JAH-WMC

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Filed 09/09/2008

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 v. 14 D. ADAMS (Warden), 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 JAMES ROBERT BARKACS, Plaintiff, ) ) ) ) ) ) ) ) ) Civil No. 07cv2139 JAH (WMc) ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL [Doc. No. 18.]

Petitioner, a state prisoner proceeding pro se, has requested, for the second time, appointment of counsel to pursue his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. [Doc. No.18.] The request for appointment of counsel is DENIED. The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the court "determines that the interests of justice so require.'" 18 U.S.C. § 3006A(a)(2)(B) (West Supp. 2005); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994).

07cv2139 JAH (WMc)

Case 3:07-cv-02139-JAH-WMC

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Filed 09/09/2008

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The appointment of counsel is discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah, 18 F.3d at 573. In the Ninth Circuit, "[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. A due process violation may occur in the absence of counsel if the issues involved are too complex for the petitioner. In addition, the appointment of counsel may be necessary if the petitioner has such limited education that he or she is incapable of presenting his or her claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). In the Eighth Circuit, "[t]o determine whether appointment of counsel is required for habeas petitioners with nonfrivolous claims, a district court should consider the legal complexity of the case, the factual complexity of the case, the petitioner's ability to investigate and present his claim, and any other relevant factors." Abdullah v. Norris, 18 F.3d at 573 (citing Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)); Hoggard, 29 F.3d at 471; Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993); Smith v. Groose, 998 F.2d 1439, 1442 (8th Cir. 1993); Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986). Because these factors are useful in determining whether due process requires the appointment of counsel, they are considered to the extent possible based on the record before the Court. In support of his renewed request for assistance of counsel, Petitioner contends that he is presently hospitalized and "has no access to legal materials, or my property and I don't know how long this will last." [Doc. No. 18 at p.1.] The Court has reviewed the present status of the case and finds that the interests of justice do not require the appointment of counsel at this time. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). Respondent filed his answer on May 7, 2008. [Doc. No. 13.] Subsequently, with the Court's grant of an extension, Petitioner was able to successfully file a Traverse to the matters raised in the Answer on June 24, 2008. [Doc. No.16.] Accordingly, no further briefing is required which would cause Petitioner to access or consult legal materials, or to require the assistance of counsel.

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07cv2139 JAH (WMc)

Case 3:07-cv-02139-JAH-WMC

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Filed 09/09/2008

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For the above-stated reasons, the "interests of justice" in this matter do not compel the appointment of counsel. Accordingly, Petitioner's request for appointment of counsel is DENIED without prejudice. IT IS SO ORDERED.
DATED: September 9, 2008

Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court Copy to: HONORABLE JOHN A. HOUSTON, U.S. DISTRICT JUDGE ALL COUNSEL OF RECORD

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07cv2139 JAH (WMc)