Billups 156407 v. Ryan

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jordan Donald Billups, No. CV-19-05771-PHX-DJH

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 Before the Court is an “Amended Notice of Withdrawal of Attorney and Extension 16 of Due Date for Filing Objections to Report and Recommendation” (Doc. 52), filed by Ms. 17 Vicki Lopez, one of Petitioner’s attorneys of record. The Court struck counsel’s first 18 Notice of Withdrawal for failure to comply with LRCiv 83.3. (Doc. 51). In that Order, the 19 Court also instructed that “[a]ny renewed motion to withdraw shall also explain the status 20 of attorney of record Cari Nolan, what notice has been provided to Petitioner, and what 21 efforts have been taken to find Petitioner new counsel.” (Id.) 22 LRCiv 83.3(b) states in relevant part, that where an attorney’s application to 23 withdraw does not include the written approval of the client, “[t]he motion shall be 24 accompanied by a certificate of the attorney making the motion that (A) the client has been 25 notified in writing of the status of the case including the dates and times of any court 26 hearings or trial settings, pending compliance with any existing court orders and the 27 possibility of sanctions. . .” LRCiv 83.3(b). Ms. Lopez does not certify that Petitioner has 28 been notified of the status of the case and states only that she has mailed a copy of the 1 Amended Notice of Withdrawal to Petitioner. She represents that the Nolan Law Firm has 2 closed and the State Bar is going to appoint a conservator to take possession of the firm’s 3 files. She further states that Mr. Nolan is recently deceased, Ms. Nolan is in a recovery 4 program, and Ms. Lopez is no longer receiving compensation from the firm. Ms. Lopez 5 states that she has met with “a representative of the Federal Public Defender’s Office” and 6 says that “[o]nce counsel has been withdrawn, and they are appointed, they are prepared to 7 take over.” (Doc. 52). 8 Without more, the Court has reservations about allowing Petitioner’s counsel to 9 withdraw under such circumstances. First, it is unclear from Ms. Lopez’s Amended Notice 10 that the circumstances underlying the need to withdraw have been communicated to 11 Petitioner beyond sending him a copy of the Amended Notice, a copy of which does not 12 inform Petitioner of his upcoming deadlines or the status of his case. Second, the Amended 13 Notice seems to assume that the Court will appoint counsel for Petitioner but makes no 14 substantive arguments regarding the need to do so. “Indigent state prisoners applying for 15 habeas corpus relief are not entitled appointed counsel unless the circumstances of a 16 particular case indicate that appointed counsel is necessary to prevent due process 17 violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 18 1023 (1987). The Court has discretion to appoint counsel when “the interests of justice so 19 require.” 18 U.S.C. § 3006A(a)(2)(B). “In deciding whether to appoint counsel in a habeas 20 proceeding, the district court must evaluate the likelihood of success on the merits as well 21 as the ability of the petitioner to articulate his claims pro se in light of the complexity of 22 the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per 23 curiam) (citations omitted). Absent a supported motion to appoint counsel, the Court has 24 no grounds to assess whether appointment is necessary. 25 Ms. Lopez nonetheless represents that the Federal Public Defender’s Office is 26 prepared to take over if the Court will grant an extension of time to file objections to the 27 Report and Recommendation. The Court finds that a third extension of time is warranted 28 under these circumstances. 1 Accordingly, 2 IT IS ORDERED that Petitioner’s third request for an extension of time to file || objections to the R&R is granted. Petitioner’s objections to the R&R shall be filed by 4|| May 16, 2022. 5 IT IS FURTHER ORDERED that the Amended Notice of Withdrawal of Attorney || (Doc. 52) is denied, without prejudice to refile upon a showing that counsel has informed 7\| Petitioner of the status of his Petition and upcoming deadlines, and/or that substitute 8 || counsel has been obtained and is prepared to file a Notice of Appearance on behalf of 9|| Petitioner. 10 Dated this 18th day of March, 2022. 11 12 5 /; fe □□ 13 norable' Diang4. Huretewa 14 United States District Fudge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-3-