Castro-Lino v. Haynes

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOSE RAFAEL CASTRO-LINO, CASE NO. 3:19-cv-05405 BHS-JRC 11 Petitioner, ORDER DENYING 12 v. APPOINTMENT OF COUNSEL 13 RON HAYNES, 14 Respondent. 15 16 The District Court has referred this petition for a writ of habeas corpus to United States 17 Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §§ 18 636(b)(1)(A) and (B) and local Magistrate Judge Rules MJR 3 and MJR 4. Before the Court is 19 petitioner’s motion for appointment of counsel. See Dkt. 16. 20 Although indigent defendants in criminal cases are entitled to appointed counsel, there is 21 no right to appointed counsel in habeas proceedings unless an evidentiary hearing is required or 22 unless appointed counsel is necessary for the effective use of discovery procedures. See 23 Terrovona v. Kincheloe, 912 F.3d 1176, 1181 (9th Cir. 1990); Rules Governing Habeas Corpus 24 Cases Under Sec. 2254, Rule 8(c). The Court may request an attorney to represent indigent civil 1 litigants under 28 U.S.C. § 1915(e)(1), but should do so only under “exceptional circumstances.” 2 Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of 3 exceptional circumstances requires an evaluation of both the likelihood of success on the merits 4 and the ability of the [petitioner] to articulate his claims pro se in light of the complexity of the

5 legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 6 Here, the Court has not ordered an evidentiary hearing or provided for discovery in this 7 case, so that petitioner does not have a right to appointed counsel. As for whether the 8 exceptional circumstances necessary to justify appointing counsel under § 1915(e) exist in this 9 matter, petitioner’s grounds for relief are straightforward legal claims that rely on the record 10 from the state court proceedings. Petitioner has so far been able to adequately articulate his 11 grounds for relief and other requests in such a way that the Court can understand him. 12 Petitioner argues that counsel should be appointed because he is untrained in the law with 13 limited law library access and cannot present this action “in the manner of a professionally 14 trained attorney.” Dkt. 16, at 1. However, circumstances that are common to most petitioners

15 requesting the appointment of counsel—such as a lack of legal training—do not constitute 16 “exceptional circumstances.” See Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir. 17 1990). 18 Regarding a likelihood of success on the merits, petitioner’s reiteration of one of the 19 grounds in his petition does not establish a likelihood of success at this early stage in the 20 proceeding. The Court notes that after petitioner requested the appointment of counsel, the Court 21 requested additional briefing from respondent—who did not separately address one of 22 petitioner’s grounds for relief—as well as the trial transcript in this matter. See Dkt. 17. 23

24 1 However, the request for the complete record and a complete answer to the petition do not 2 establish a likelihood of success on the merits in this matter. 3 Therefore, petitioner’s motion for counsel (Dkt. 16) is denied without prejudice. 4 Petitioner may again request counsel if he is able to show the exceptional circumstances

5 necessary to warrant the appointment of counsel. 6 Dated this 21st day of October, 2019. A 7

8 J. Richard Creatura United States Magistrate Judge 9

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