Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 Petitioner, 11 vs. 12 Terry L. Stewart, et al., 13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gregory Alik Pike, fka Gregory Waterman ) ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CIV 02-2368-PHX-JWS (DKD) ORDER

Pending before the Court is Petitioner's Amended Motion for Determination of Counsel (Doc. #105). Petitioner originally appeared pro se but counsel was appointed pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts upon the Court's setting of an evidentiary hearing. The scope of counsel's representation was defined by the Court's Minute Entry ("Court Appointed Counsel is appointed limitedly for the purposes of the evidentiary hearing ONLY." (Doc. #33) (emphasis in original)) and a Minute Order (counsel is appointed "for the limited purpose of the Evidentiary Hearing set for March 5, 2004 at 1:30 p.m." (Doc. #35)). The evidentiary hearing addressed "the issue of whether Plaintiff's Petition for Writ of Habeas Corpus should be dismissed because it was filed beyond the AEDPA's one-year statute of limitations. Specifically, the parties shall present evidence on the issue of whether Petitioner filed a Petition for Review with the Arizona Supreme Court on May 15, 2000, thereby tolling the statute of limitations." (Doc #26). Petitioner's counsel subsequently sought guidance three times from the Court as to the scope of the appointment: first with respect to whether the appointment extended to the taking
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of discovery limited to the purpose of the evidentiary hearing; second, whether the appointment authorized counsel to prepare objections to the Court's Report and Recommendation; and third, whether counsel was authorized to represent Petitioner for an appeal of the Court's ruling on the issue presented at the evidentiary hearing. representation did include these matters. Petitioner's Court Appointed Counsel has returned to Court for a further determination of whether the appointment applies to matters now pending before the Court. As explained above, Petitioner originally appeared pro se and counsel was only appointed, pursuant to Rule 8(c), upon the Court's determination that an evidentiary hearing was warranted. U.S. v. DuarteHigareda, 68 F.3d 369 (9th Cir. 1995) (court must appoint counsel to represent an indigent petitioner at an evidentiary hearing). The Court has resolved the issue presented at the evidentiary hearing and thus the basis for the appointment under Rule 8(c) no longer exists. However, the Court will address whether continued appointment of counsel is warranted in the interest of justice. Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances indicate that appointed counsel is necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per curiam); Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965), cert. denied, 382 U.S. 996 (1966). The Court has discretion to appoint counsel when a judge "determines that the interests of justice so require." Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990), cert. denied, 499 U.S. 979 (1991) (quoting 18 U.S.C. § 3006A(a)(2)(B)). "In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Petitioner has not shown that he is more likely to succeed on the merits of his claims than any other habeas petitioner before this Court, nor has he shown that his claims are particularly complex. Moreover, the pleadings -2Case 2:02-cv-02368-JWS Document 109 Filed 12/15/2006 Page 2 of 3

In each case, the Court affirmed that the

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Petitioner filed prior to the appointment of counsel demonstrate that he is well able to present his claims to the Court. The Court GRANTS Petitioner's Amended Motion of a Determination of Counsel (Doc. #105) and advises counsel that court appointed representation has concluded and that Petitioner is not presently entitled to court appointed counsel. This action is without prejudice to Petitioner's opportunity to request the appointment of counsel in the future and the Court's subsequent consideration of the issue if the Court's consideration of the merits warrants an evidentiary hearing. In light of the District Judge's determination that the petition is not barred by AEDPA's statute of limitations, IT IS FURTHER ORDERED that Respondents must answer the Petition within 40 days of the date of this Order. Petitioner may file a reply within 30 days from the date of service of the answer. DATED this 14th day of December, 2006.

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