Cover v. Uttecht

• Court: District Court, W.D. Washington
• Decided: January 12, 2021
• Docket: 3:19-cv-05064
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JEFFREY M COVER, CASE NO. 3:19-CV-05064-BHS-DWC 11 Petitioner, ORDER 12 v. 13 JEFFREY A UTTECHT, 14 Respondent. 15 16 The District Court has referred this action to United States Magistrate Judge David W. 17 Christel.PetitionerJeffrey M Coverfiled a federal habeas Petition, pursuant to 28 U.S.C. § 18 2254, seeking relief from a state court conviction.SeeDkt. 3. Currently before the Court is 19 Petitioner’sMotion to Lift Stay and for Appointment ofCounsel. Dkt. 24 (“Motion”). 20 After review of the relevant record, Petitioner’s Motion (Dkt. 24) is granted-in-part and 21 denied-in-part. The Court lifts thestay and denies Petitioner’s request to appoint counsel. 22 23 24 1 I. Request to Lift Stay 2 On May 6, 2019, the Court stayed this case pending the resolution of Petitioner’s 3 personal restraint petition (“PRP”) in the state courts. Dkt. 12. On November 4, 2020, the 4 Washington Supreme Court issued a decision on Petitioner’s Motion to Modify. Dkt. 24 at 3. 5 Petitioner now requests the Court lift the stayas the state court proceedings are completed. Dkt.

6 24. Respondent agrees. Dkt. 25. 7 After considering Petitioner’s Motion and the relevant record, the Court lifts the stay. 8 Respondent shall file a supplemental answer to the Petition on or before March 1, 2021. The 9 answer will be treated in accordance with LCR 7. Accordingly, on the face of the answer, 10 Respondent shall note it for consideration on the fourth Friday after filing. Petitioner may file 11 and serve a supplemental response not later than the Monday immediately preceding the Friday 12 designated for consideration of the matter, and Respondent may file and serve a reply not later 13 than the Friday designated for consideration of the matter. 14 II. Appointment of Counsel

15 Petitioner also moves for the appointment of counsel. Dkt. 24. There is no right appointed 16 counsel in cases brought under 28 U.S.C. § 2254 unless an evidentiary hearing is required or 17 such appointment is necessary for the effective utilization of discovery procedures. See 18 McCleskey v. Zant, 499 U.S. 467, 495 (1991); United States v. Duarte-Higareda, 68 F.3d 369, 19 370 (9th Cir. 1995); United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990); Weygandt 20 v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules Governing Section 2254 Cases in the United 21 States District Courts 6(a) and 8(c). The Court may appoint counsel “at any stage of the case if 22 the interest of justice so requires.” Weygandt, 718 F.2d at 954. In deciding whether to appoint 23 counsel, the Court “must evaluate the likelihood of success on the merits as well as the ability of 24 1 the petitioner to articulate his claims pro sein light of the complexity of the legal issues 2 involved.” Id. 3 In this case, Petitioner asserts he needs counsel for this action primarily because his 4 access to the lawlibrary is limited due to COVID-19restrictions taken by the DOC. Dkt. 24. At 5 this time, the Court has not determined an evidentiary hearing will be necessary, and Petitioner

6 does not contend counsel is necessary to utilize discovery procedures. See Rules Governing 7 Section 2254 Cases in the United States District Courts 6(a) and 8(c). Additionally, Petitioner 8 effectively articulated the grounds for relief raised in the Petition, litigated his PRP in the state 9 courts,and has filed a successful Motion to Stay, all of which establish Petitioner has been able 10 to file appropriate motions and understand filings in this case.The grounds raised in the Petition 11 arenot factually or legally complex. See Dkt. 3. Petitioner has also not shown he is likely to 12 succeed on the merits of this case. Therefore, Petitioner has not shown he is unable to litigate this 13 case without the assistance of counsel because of his limited access to the law library due to 14 COVID-19 restrictions.

15 The Court finds Petitioner has not shown appointment of counsel is appropriate at this 16 time. Accordingly, the request for the appointment of counsel (Dkt. 24) is denied without 17 prejudice. 18 Datedthis 12thday ofJanuary, 2021. 19 A 20 David W. Christel 21 United States Magistrate Judge 22 23 24