Diazleal-Diazleal v. Key

• Court: District Court, W.D. Washington
• Decided: August 3, 2021
• Docket: 2:21-cv-00068
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MAXIMO DIAZLEAL-DIAZLEAL, Case No. 2:21-cv-00068-JCC-TLF 7 Petitioner, v. ORDER DENYING MOTION TO 8 APPOINT COUNSEL AND RE- JAMES KEY, NOTING MOTION TO PRODUCE 9 TRIAL TRANSCRIPTS Respondent. 10

11 This matter is before the Court on petitioner’s motion to appoint counsel and for 12 the production of trial transcripts. Dkt. 15. Respondent opposes the motion. Dkt. 16. 13 Petitioner has replied. Dkt. 17. 14 A. Motion for Counsel 15 Petitioner requests the appointment of counsel, contending that he is not 16 conversant in English and has had limited law library access due to restrictions arising 17 out of the COVID 19 pandemic. Dkt. 15 at 2–3. 18 There is no constitutional right to appointment of counsel in habeas petitions 19 because they are civil, not criminal, in nature. See Terrovona v. Kincheloe, 912 F.3d 20 1176, 1181 (9th Cir. 1990). Appointment of counsel is mandatory only if the district court 21 determines that an evidentiary hearing is required. See Id., 852 F.2d at 429; Brown v. 22 Vasquez, 952 F.2d 1164, 1168 (9th Cir.1992); Rules Governing Section 2254 Cases, 23 Rule 8(c). If no evidentiary hearing is necessary, the appointment of counsel remains 24 discretionary. Wilborn v. Escalderon, 789 F.2d 1328, 1330–31 (9th Cir. 1986). 1 The Court may request an attorney to represent indigent civil litigants under 28 2 U.S.C. § 1915(e)(1) but should do so only under “exceptional circumstances.” Agyeman 3 v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of 4 exceptional circumstances requires an evaluation of both the likelihood of success on

5 the merits and the ability of the petitioner to articulate his claims pro se in light of the 6 complexity of the legal issues involved.” Wilborn, 789 F.2d at 1331. These factors must 7 be viewed together before reaching a decision on a request for counsel under § 8 1915(e)(1). Id. 9 The Court finds that this matter does not present exceptional circumstances 10 supporting the appointment of counsel. The issues here are not particularly complex, 11 and petitioner has effectively articulated his grounds for relief in the petition, as well as 12 his requests in the pending motion. In particular, there is no indication in petitioner’s 13 filings that his ability to pursue this action has been impaired by any language 14 difficulties. Furthermore, any challenges posed by difficulties accessing law library

15 resources can be addressed by an extension of time, to which respondent has not 16 objected. Finally, the Court has not determined that an evidentiary hearing is required. 17 The Court finds that petitioner has not shown that appointment of counsel is 18 appropriate at this time. Accordingly, the petitioner’s motion for the appointment of 19 counsel is denied without prejudice. 20 B. Production of Transcripts 21 Petitioner has also moved for “discovery”—but his motion makes clear that what 22 he actually seeks is the production of the transcripts of his trial. Dkt. 15 at 2. 23 Respondent argues that the transcripts are not relevant to the resolution of petitioner’s

24 habeas claims. Dkt. 16 at 3. Specifically, respondent argues that petitioner has failed to 1 properly exhaust three of his claims and the remaining claim is legally deficient—and 2 the trial transcripts are therefore not relevant to the resolution of any of the claims. Dkt. 3 16 at 3. 4 The Court agrees that if respondent’s arguments prevail, there will be no need to

5 reach the underlying merits of petitioner’s claims and the trial transcripts would be 6 unnecessary. It is premature to decide at this time the validity of respondent’s 7 arguments. Accordingly, the Court will re-note petitioner’s motion for production of the 8 transcripts for consideration at the same time as the petition. 9 C. Conclusion 10 The Court Orders as follows: 11 (1) Petitioner’s motion for the appointment of counsel is DENIED without 12 prejudice. 13 (2) Petitioner is granted an extension until September 20, 2021 to file his 14 Traverse; the Clerk shall RE-NOTE the petition for September 24, 2021.

15 (3) Petitioner’s motion for the production of trial transcripts shall be RE- 16 NOTED for September 24, 2021. 17 Dated this 3rd day of August, 2021. 18 19 A

20 Theresa L. Fricke United States Magistrate Judge 21 22 23 24