Burrus v. Jackson

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 2:23-cv-01968-BHS-GJL 11 Petitioner, v. ORDER ON MOTION TO ROBERT JACKSON, 13 Respondent. 14

15 This federal habeas action filed pursuant to 28 U.S.C. § 2254 has been referred to United 16 States Magistrate Judge Grady J. Leupold. Before the Court is Petitioner’s Motion to Appoint 17 Counsel. Dkt. 15. Upon review, the undersigned finds Petitioner’s request for court-appointed 18 counsel is premature and DENIES the Motion without prejudice. Nevertheless, Petitioner is 19 granted leave to refile the instant motion after Respondent has filed his Answer to the Petition. 21 Petitioner filed his Motion to Appoint Counsel on May 8, 2024. Dkt. 15. On that same 22 day, Respondent requested an extension of time to file his Answer to the Petition. Dkt. 14. The 23 Court granted Respondent’s request for an extension to the Answer deadline and sua sponte 24 1 extended the deadline to respond to Petitioner’s Motion to Appoint Counsel. Dkt. 16. However, 2 Respondent did not respond to the Motion by the extended deadline, so the Court ordered him to 3 Show Cause why the Motion should not be granted or, in the alternative, why the matter should 4 not be referred to the Office of the Federal Public Defender for external review. Dkt. 19.

5 On June 14, 2024, Respondent filed a timely Response to the Court’s Show Cause Order. 6 Dkt. 20. Thus, Petitioner’s Motion to Appoint Counsel is fully briefed and ripe for consideration. 8 There is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254, 9 unless an evidentiary hearing is required or such appointment is “necessary for the effective 10 utilization of discovery procedures.” See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United 11 States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 12 F.2d 1129, 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules 13 Governing Section 2254 Cases in the United States District Courts 6(a) and 8(c). The Court also 14 may appoint counsel “at any stage of the case if the interest of justice so requires.” Weygandt,

15 718 F.2d at 954. In deciding whether to appoint counsel, however, the Court “must evaluate the 16 likelihood of success on the merits as well as the ability of the petitioner to articulate his claims 17 pro se in light of the complexity of the legal issues involved.” Id. 19 In his Motion, Petitioner cites his inability to afford an attorney, his unfamiliarity with the 20 law, and his limited access to the legal resources available at Washington State Penitentiary 21 (“WSP”) as reasons necessitating the appointment of counsel in this case. Dkt. 15 at 1–2. In 22 particular, he states that he will require the assistance of counsel to prepare a response in 23

24 1 opposition to Respondent’s forthcoming Answer, arguing that the legal issues involved will be 2 complex and may require discovery and/or an evidentiary hearing. Id. at 2–3. 3 In response, Respondent argues that, without the benefit of his Answer to the Petition, it 4 is too early for the Court to assess the propriety of appointing counsel in this case. Dkt. 20. For

5 this reason, Respondent asserts the Motion should be denied without prejudice or, in the 6 alternative, the Court should defer ruling on the Motion—and/or referring the matter for external 7 review—until after the Answer has been filed. Id. 8 The Court agrees with Respondent and finds that Petitioner has not yet demonstrated the 9 circumstances required for court-appointed counsel. It is still very early in Petitioner’s habeas 10 proceedings. Respondent has not filed an Answer, and the extended deadline for doing so has not 11 yet passed. Dkt. 18. Because it is so early, the Court cannot determine the complexity of the legal 12 issues involved, the need for counsel to aid in any discovery, or the potential need for an 13 evidentiary hearing in this case. 14 Without making any determination as to his ability litigate the specific legal issues

15 involved in this case without counsel, the Court notes that Petitioner’s pro se filings thus far 16 suggest he is capable of clearly articulating his claims and effectively presenting his legal 17 arguments. See Dkts. 5, 11, 15. Furthermore, as Respondent correctly stated in his Response, if 18 Petitioner requires additional time to submit any future filings or responses because of limits 19 placed on his access to WSP’s legal resources, he may seek an extension of time to file or 20 respond on that basis. 21 Accordingly, it is simply too early to determine whether the appointment of counsel is 22 appropriate in this case. And, rather than deferring decision on the instant Motion, the Court 23 finds it is more appropriate to deny the Motion without prejudice so that Petitioner may, if he so

24 1 chooses, refile his request for counsel after reviewing Respondent’s forthcoming Answer to his 2 Petition. 4 For the above reasons, Petitioner’s Motion to Appoint Counsel (Dkt. 15) is DENIED

5 without prejudice but Petitioner is granted leave to refile after Respondent has filed an Answer 6 to the Petition. 7 Dated this 20th day of June, 2024. 8 A 9 10 Grady J. Leupold United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24