Ayers v. Burton

Opinion

1 2 3 4 5 6 7 10 BOBBY RAY AYERS, 11 Case No. 21-05806 BLF (PR) Petitioner, 12 ORDER GRANTING MOTION FOR CLARIFICATION; DENYING 13 v. MOTION FOR APPOINTMENT OF COUNSEL; GRANTING 14 EXTENSION OF TIME TO FILE ROBERT BURTON, AMENDED PETITION; Respondent. 16 (Docket No. 9)

17 18 19 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 20 corpus pursuant to 28 U.S.C. § 2254, challenging the denial of parole. Dkt. No. 1. On 21 November 29, 2021, the Court dismissed the petition with leave to amend, and denied 22 Petitioner’s motion for appointment of counsel. Dkt. No. 8. Petitioner has filed a motion 23 for clarification and reconsideration of appointment of counsel. Dkt. No. 9. 24 Petitioner requests the Court to clarify whether he is supposed to file a petition 25 26 under 28 U.S.C. § 2254 or a complaint under 42 U.S.C. § 1983. Id. at 5. It appears that 27 there was a clerical error in attaching the wrong court form to the Court’s Order of 1 Dismissal with Leave to Amend. Although the Court ordered that the court’s form petition 2 be attached, Dkt. No. 8 at 6, the court’s form complaint was attached instead. Petitioner 3 shall disregard the § 1983 form complaint that was provided to him. The Court shall direct 4 the Clerk to send the proper form petition to Petitioner to file an amended petition. 5 Petitioner again requests appointment of counsel or guardian ad litem based on his 6 7 “psyche-status.” Dkt. No. 9 at 4. Petitioner asserts that he is under the care of a 8 psychiatrist, a psychologist, a licensed social worker, and a psych-technicians, and also 9 taking psyche-meds that make him incompetent to litigate this case. Id. In support, 10 Petitioner provides the declaration of his “legal-assistant,” another inmate incarcerated in 11 the same prison and housing unit as Petitioner who is helping Petitioner with this action. 12 Id. at 9. This declaration from another inmate rather than a mental health professional is 13 14 not sufficient to raise a “substantial question” regarding the mental incompetence of 15 Petitioner to trigger the Court’s duty of inquiry. See Allen v. Calderon, 408 F.3d 1150, 16 1153 (9th Cir. 2005); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989); Ferrelli v. 17 River Manor Health Care Center, 323 F.3d 196, 201-02 (2d Cir. 2003). Accordingly, the 18 motion for appointment of counsel or guardian ad litem is DENIED. 19 Petitioner is attempting to challenge the most recent denial of parole through this 20 21 action. Dkt. No. 1 at 5. Petitioner may file an amended petition to correct the deficiencies 22 in the pleading as discussed in the Court’s Order of Dismissal with Leave to Amend. Dkt. 23 No. 8 at 2-3. In light of the clerical error, Petitioner shall be granted an extension of time 24 to file an amended petition. Petitioner’s amended petition shall be filed no later than 25 twenty-eight (28) days from the date this order is filed. 26 The Clerk shall include two copies of the court’s form petition (28 U.S.C. § 2254 27 1 This order terminates Docket No. 9. 3 Dated: December 13, 2021 A OM Ly hammer) BETH LABSON FREEMAN 4 United States District Judge 5 6 7 8 9 10 11 12

Oo Z 18 19 20 21 22 Order Granting Clarification; Denying Appt. of Counsel; EOT P:\PRO-SE\BLF\HC.21\05806Ayers_clarification&atty 23 24 25 26 27 28