1 2 3 4 5
9 Clemente Arias-Luna, No. CV-20-00538-PHX-DLR (ESW)
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 I. Background 16 Petitioner was found guilty by a jury in Arizona state court of one count of sexual 17 conduct with a minor, a class 2 felony and dangerous crime against children; one 18 count of molestation of a child, a class 2 felony and dangerous crime against children; 19 and false reporting to a law enforcement agency, a class 1 misdemeanor. He was sentenced 20 to a total of 37 years in prison. 21 He initiated post-conviction proceedings in state court and later filed a habeas 22 petition with this Court. (Doc. 1.) Magistrate Judge Eileen S. Willet recommended that 23 the Petition be dismissed with prejudice, finding that Grounds One, Two, Three, and Seven 24 were precluded by Ariz. R. Crim. P. 32.2(a)(3) and Grounds Four, Five and Six were 25 dismissed because they failed to allege a cognizable violation of federal law and, 26 alternatively, because Petitioner failed to exhaust his state remedies on Grounds Four and 27 Six. (Doc. 17.) Petitioner objected. (Doc. 18.) This Court accepted the recommendation 28 and overruled Petitioner’s objections. (Doc. 26.) 1 II. Pending Report and Recommendation 2 Pending before the Court is the Report and Recommendation (“R&R”) of 3 Magistrate Judge Eileen S. Willett (Doc. 37) regarding Petitioner’s May 6, 2021 Motion 4 (Doc. 32) in which Petitioner requests the appointment of counsel or in the alternative, an 5 order requiring the Arizona Department of Corrections (“ADC”) to grant Petitioner 6 additional access to legal resources. Petitioner has also requested an additional thirty-day 7 extension to file a notice of appeal on any such motions. The R&R recommends denying 8 Petitioner’s requests for the appointment of counsel and injunctive relief and granting 9 Petitioner’s request for an extension of time. 10 Petitioner objected (Doc. 38), Respondents responded (Doc. 39), and Petitioner filed 11 a reply (Doc. 40). Non-Party Arizona Department of Corrections Rehabilitation and 12 Reentry’s (“ADCRR”) filed a Motion to Strike Petitioner’s Reply on July 27, 2021 (Doc. 13 42), and Petitioner filed a Motion for Court Order to Allow a Reply to be Accepted on 14 August 8, 2021 (Doc. 43). The Court has considered the objections and reviewed the R&R 15 de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 16 A. Appointment of Counsel 17 The R&R correctly explained: 18 “Indigent state prisoners applying for habeas corpus relief are not entitled appointed counsel unless the circumstances of a 19 particular case indicate that appointed counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 20 1191, 1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when “the interests of justice so require.” 18 21 U.S.C. § 3006A(a)(2)(B). “In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate 22 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 23 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam) (citations 24 omitted). “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 25 965, 970 (9th Cir. 2009). (Doc. 37 at 2.) 26 The R&R found that Petitioner had not shown that the interests of justice require 27 the appointment of counsel in this case, which had been dismissed in January 2021, almost 28 nine months ago. The Court agrees. Petitioner filed and litigated his Petition for Habeas 1 Corpus, and when the Magistrate Judge issued an R&R recommending that it be dismissed, 2 he filed a timely objection. He has not pointed to any actionable claim he desired to bring 3 that has been lost or rejected or that the presentation of such a claim is currently being 4 prevented because the capability to file such a suit has not been provided. His habeas was 5 dismissed because some claims were precluded, and some failed to allege a cognizable 6 violation of federal law and, alternatively, because Petitioner on some, failed to exhaust his 7 state remedies. 8 B. Right to access to court. 9 Petitioner argues in his objection that he is “an untrained layperson” and with 10 counsel he could “file a meritorious petition.” (Doc. 38 at 4.) He concedes that he is in a 11 position no different than many pro se prison litigants but argues that the resources 12 available to him in prison make his efforts at self-representation futile. (Id. at 5.) He points 13 out that he is a “non-English speaker,” the library has no Spanish material and offers no 14 interpreters trained to assist with legal work, that the paralegal is never in the library, and 15 the librarian is often absent. (Id.) 16 Incarcerated people are entitled to “a reasonably adequate opportunity to present 17 claimed violations of fundamental constitutional rights to the courts.” Bounds v. Smith, 18 430 U.S. 817m, 825 (1977). This does not require, however, “that the State . . . enable the 19 prisoner to discover grievances, and to litigate effectively once in court . . . To demand the 20 conferral of such sophisticated legal capabilities upon a mostly uneducated and indeed 21 largely illiterate prison population is [not something] … the Constitution requires.” Lewis 22 v. Casey, 518 U.S. 343, 354 (1996) (emphasis in original). The Constitution requires only 23 that prisoners be able to present their grievances to the courts—a more limited capability 24 that can be produced by a much more limited degree of legal assistance. Lewis at 360. 25 An inmate alleging a violation under Bounds “must show actual injury” arising from 26 the alleged inadequacies in the law library, legal assistance or access provided by officials. 27 Lewis v. Casey, 518 U.S. 343, 349 (1996). The failure to allege an actual injury is “fatal.” 28 Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008). “[A]ctual injury” means “actual 1 || prejudice with respect to contemplated or existing litigation, such as the inability to meet a 2|| filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 (1996); accord Keenan y. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). To satisfy the injury requirement the inmate must show that he as been denied “a reasonably adequate opportunity to file 5 || nonfrivolous legal claims challenging [his] convictions ... [I]t is that capability, rather □□ than the capability of [perusing documents associated with his convictions], that is the || touchstone.” Lewis at 356-357. Generalized allegations will not suffice; specificity is 8 || required. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). 9 The Court finds that the R&R correctly found that: 10 1. “To the extent that Petitioner is raising an access-to-courts claim based on a lack 11 of affirmative assistance, the claim fails as this case is well beyond the pleading 12 stage.” (Doc.
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1 2 3 4 5
9 Clemente Arias-Luna, No. CV-20-00538-PHX-DLR (ESW)
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 I. Background 16 Petitioner was found guilty by a jury in Arizona state court of one count of sexual 17 conduct with a minor, a class 2 felony and dangerous crime against children; one 18 count of molestation of a child, a class 2 felony and dangerous crime against children; 19 and false reporting to a law enforcement agency, a class 1 misdemeanor. He was sentenced 20 to a total of 37 years in prison. 21 He initiated post-conviction proceedings in state court and later filed a habeas 22 petition with this Court. (Doc. 1.) Magistrate Judge Eileen S. Willet recommended that 23 the Petition be dismissed with prejudice, finding that Grounds One, Two, Three, and Seven 24 were precluded by Ariz. R. Crim. P. 32.2(a)(3) and Grounds Four, Five and Six were 25 dismissed because they failed to allege a cognizable violation of federal law and, 26 alternatively, because Petitioner failed to exhaust his state remedies on Grounds Four and 27 Six. (Doc. 17.) Petitioner objected. (Doc. 18.) This Court accepted the recommendation 28 and overruled Petitioner’s objections. (Doc. 26.) 1 II. Pending Report and Recommendation 2 Pending before the Court is the Report and Recommendation (“R&R”) of 3 Magistrate Judge Eileen S. Willett (Doc. 37) regarding Petitioner’s May 6, 2021 Motion 4 (Doc. 32) in which Petitioner requests the appointment of counsel or in the alternative, an 5 order requiring the Arizona Department of Corrections (“ADC”) to grant Petitioner 6 additional access to legal resources. Petitioner has also requested an additional thirty-day 7 extension to file a notice of appeal on any such motions. The R&R recommends denying 8 Petitioner’s requests for the appointment of counsel and injunctive relief and granting 9 Petitioner’s request for an extension of time. 10 Petitioner objected (Doc. 38), Respondents responded (Doc. 39), and Petitioner filed 11 a reply (Doc. 40). Non-Party Arizona Department of Corrections Rehabilitation and 12 Reentry’s (“ADCRR”) filed a Motion to Strike Petitioner’s Reply on July 27, 2021 (Doc. 13 42), and Petitioner filed a Motion for Court Order to Allow a Reply to be Accepted on 14 August 8, 2021 (Doc. 43). The Court has considered the objections and reviewed the R&R 15 de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 16 A. Appointment of Counsel 17 The R&R correctly explained: 18 “Indigent state prisoners applying for habeas corpus relief are not entitled appointed counsel unless the circumstances of a 19 particular case indicate that appointed counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 20 1191, 1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when “the interests of justice so require.” 18 21 U.S.C. § 3006A(a)(2)(B). “In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate 22 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 23 complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam) (citations 24 omitted). “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 25 965, 970 (9th Cir. 2009). (Doc. 37 at 2.) 26 The R&R found that Petitioner had not shown that the interests of justice require 27 the appointment of counsel in this case, which had been dismissed in January 2021, almost 28 nine months ago. The Court agrees. Petitioner filed and litigated his Petition for Habeas 1 Corpus, and when the Magistrate Judge issued an R&R recommending that it be dismissed, 2 he filed a timely objection. He has not pointed to any actionable claim he desired to bring 3 that has been lost or rejected or that the presentation of such a claim is currently being 4 prevented because the capability to file such a suit has not been provided. His habeas was 5 dismissed because some claims were precluded, and some failed to allege a cognizable 6 violation of federal law and, alternatively, because Petitioner on some, failed to exhaust his 7 state remedies. 8 B. Right to access to court. 9 Petitioner argues in his objection that he is “an untrained layperson” and with 10 counsel he could “file a meritorious petition.” (Doc. 38 at 4.) He concedes that he is in a 11 position no different than many pro se prison litigants but argues that the resources 12 available to him in prison make his efforts at self-representation futile. (Id. at 5.) He points 13 out that he is a “non-English speaker,” the library has no Spanish material and offers no 14 interpreters trained to assist with legal work, that the paralegal is never in the library, and 15 the librarian is often absent. (Id.) 16 Incarcerated people are entitled to “a reasonably adequate opportunity to present 17 claimed violations of fundamental constitutional rights to the courts.” Bounds v. Smith, 18 430 U.S. 817m, 825 (1977). This does not require, however, “that the State . . . enable the 19 prisoner to discover grievances, and to litigate effectively once in court . . . To demand the 20 conferral of such sophisticated legal capabilities upon a mostly uneducated and indeed 21 largely illiterate prison population is [not something] … the Constitution requires.” Lewis 22 v. Casey, 518 U.S. 343, 354 (1996) (emphasis in original). The Constitution requires only 23 that prisoners be able to present their grievances to the courts—a more limited capability 24 that can be produced by a much more limited degree of legal assistance. Lewis at 360. 25 An inmate alleging a violation under Bounds “must show actual injury” arising from 26 the alleged inadequacies in the law library, legal assistance or access provided by officials. 27 Lewis v. Casey, 518 U.S. 343, 349 (1996). The failure to allege an actual injury is “fatal.” 28 Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008). “[A]ctual injury” means “actual 1 || prejudice with respect to contemplated or existing litigation, such as the inability to meet a 2|| filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 (1996); accord Keenan y. Hall, 83 F.3d 1083, 1093 (9th Cir. 1996). To satisfy the injury requirement the inmate must show that he as been denied “a reasonably adequate opportunity to file 5 || nonfrivolous legal claims challenging [his] convictions ... [I]t is that capability, rather □□ than the capability of [perusing documents associated with his convictions], that is the || touchstone.” Lewis at 356-357. Generalized allegations will not suffice; specificity is 8 || required. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). 9 The Court finds that the R&R correctly found that: 10 1. “To the extent that Petitioner is raising an access-to-courts claim based on a lack 11 of affirmative assistance, the claim fails as this case is well beyond the pleading 12 stage.” (Doc. 37 at 4.) 13 2. “To the extent that Petitioner is raising an access-to-courts claim based on active 14 interference, Petitioner has failed to demonstrate that he has suffered or will 15 likely suffer actual injury as a result of the library policies of which he asserts 16 ore deficient.” (Jd.) 17 IT IS ORDERED that ADCRR’s Motion to Strike Petitioner’s Reply (Doc. 42) is 18 || DENIED and Petitioner Motion for Court Order to Allow a Reply to be Accepted is GRANTED. (Doc. 43.) 20 IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R (Doc. 38) are OVERRULED. 22 IT IS FURTHER ORDERED that the R&R (Doc.37) is ACCEPTED. 23 IT IS FURTHER ORDERED that Petitioner’s Motion for a thirty-day extension 24|| of time to file a notice of appeal, or any motions is GRANTED. 25 Dated this 6th day of October, 2021. 26 - b 4 bla 28 Do . Rayes United States District Judge
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