1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 3:21-cv-01395-JLS-AHG
12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 KATHLEEN ALLISON, Secretary,
15 Respondent. [ECF No. 28]
16 17 18 19 Before the Court is Petitioner Pedro Rodriguez’s (“Petitioner”) Motion for 20 Appointment of Counsel. ECF No. 28. For the reasons set forth below, the Court DENIES 21 Petitioner’s motion. 22 I. BACKGROUND 23 Petitioner, proceeding pro se and in forma pauperis, filed a Petition for Writ of 24 Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 3, 2021. ECF Nos. 1, 7. 25 Respondent has not yet filed her Answer to the Petition. See ECF No. 30 (requiring 26 Respondent’s Answer to be filed by February 14, 2022 and Petitioner’s Traverse to be filed 27 by March 18, 2022). Plaintiff filed the instant motion for appointment of counsel on 28 February 2, 2022. ECF No. 28. This Order follows. 1 II. LEGAL STANDARD 2 There is no constitutional right to appointment of counsel in federal habeas 3 proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Chaney v. Lewis, 801 F.2d 4 1191, 1196 (9th Cir. 1986); see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 5 2002) (quoting Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993) for the proposition that 6 “there is no constitutional right to counsel on federal habeas”) (alteration omitted). 7 Nevertheless, financially eligible habeas petitioners may obtain counsel whenever 8 the court “determines that the interests of justice so require.’” 18 U.S.C. 9 § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). Courts 10 have found that the interests of justice require appointment of counsel when the court 11 conducts an evidentiary hearing on the petition. Id. at 1177; Knaubert v. Goldsmith, 791 12 F.2d 722, 728 (9th Cir. 1986). However, when no evidentiary hearing is necessary, 13 appointment of counsel is discretionary. Id. In the Ninth Circuit, indigent prisoners 14 applying for habeas relief are not entitled to appointed counsel “unless the circumstances 15 of a particular case show that appointed counsel is necessary to prevent due process 16 violations.” Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. 17 Section 3006A(a)(2)(B) is not the only source of authority for appointment of 18 counsel to an indigent petitioner in a habeas proceeding. Where, as here, a petitioner has 19 been granted leave to proceed in forma pauperis, courts also have discretion under 28 20 U.S.C. § 1915(e)(1) to provide legal representation to “any person unable to afford 21 counsel.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see also McDonald v. 22 Waddington, No. C07-0135-JCC-BAT, 2009 WL 302279, at *2 (W.D. Wash. Feb. 6, 2009) 23 (“A court has the discretion to appoint counsel [in a federal habeas proceeding], 18 U.S.C. 24 § 3006A(a) (2)(B); 28 U.S.C. § 1915(e)(1), depending on the prisoner’s ability to articulate 25 his claim in light of the complexity of the legal issues and the likelihood of success on the 26 petition’s merits”) (citing Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 27 To qualify for appointment of counsel under § 1915(e)(1), courts have required that 28 plaintiffs demonstrate they are indigent and that they have made a reasonably diligent effort 1 to secure counsel on their own. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) 2 (extending the “reasonably diligent effort” standard used in Bradshaw v. Zoological Soc’y 3 of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981) to requests made pursuant to 28 U.S.C. 4 § 1915); see, e.g., Verble v. United States, No. 07cv0472 BEN-BLM, 2008 WL 2156327, 5 at *2 (S.D. Cal. May 22, 2008). But even after a petitioner satisfies the two initial 6 requirements of indigence and a diligent attempt to obtain counsel, “he is entitled to 7 appointment of counsel only if he can [also] show exceptional circumstances.” Bailey, 835 8 F. Supp. at 552 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 9 The Court’s determination of whether such “exceptional circumstances” exist entails 10 “an evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff 11 to articulate his claims pro se in light of the complexity of the legal issues involved.’ 12 Neither of these issues is dispositive and both must be viewed together before reaching a 13 decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331); see also Palmer 14 v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). These same considerations should guide the 15 Court’s discretion in deciding whether to appoint counsel in a habeas proceeding generally. 16 Weygandt, 718 F.2d at 954. 17 III. DISCUSSION 18 Here, the Court acknowledged Petitioner’s indigence when it granted Petitioner’s 19 motion to proceed in forma pauperis. ECF No. 7. However, Petitioner does not include any 20 information in his motion about whether he has attempted to secure counsel on his own. 21 Requiring that litigants “make a reasonably diligent effort to secure counsel before asking 22 the court to appoint counsel for them . . . is ‘not [to] suggest that a plaintiff should be 23 required to exhaust the legal directory before a court could appoint him an attorney. 24 [H]owever, a person’s diligence in attempting to obtain a lawyer to assist him may properly 25 be considered by the district court in assessing the justness of the application for counsel.’” 26 Moore v. Raught, No. 07-03836-VBF-JPR, 2014 WL 1795138, at *7 (C.D. Cal. Mar. 17, 27 2014) (brackets in original) (quoting Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 28 (5th Cir. 1977)). Here, “Plaintiff’s lack of funds alone does not demonstrate that efforts to 1 secure counsel necessarily would be futile.” Vera v. Gipson, No. 13cv870-AWI-MJS-PC, 2 2014 WL 807051, at *5 (E.D. Cal. Feb. 28, 2014). Therefore, Petitioner does not qualify 3 for appointment of counsel under 28 U.S.C. § 1915(e)(1).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 3:21-cv-01395-JLS-AHG
12 Petitioner, ORDER DENYING PETITIONER’S 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 KATHLEEN ALLISON, Secretary,
15 Respondent. [ECF No. 28]
16 17 18 19 Before the Court is Petitioner Pedro Rodriguez’s (“Petitioner”) Motion for 20 Appointment of Counsel. ECF No. 28. For the reasons set forth below, the Court DENIES 21 Petitioner’s motion. 22 I. BACKGROUND 23 Petitioner, proceeding pro se and in forma pauperis, filed a Petition for Writ of 24 Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 3, 2021. ECF Nos. 1, 7. 25 Respondent has not yet filed her Answer to the Petition. See ECF No. 30 (requiring 26 Respondent’s Answer to be filed by February 14, 2022 and Petitioner’s Traverse to be filed 27 by March 18, 2022). Plaintiff filed the instant motion for appointment of counsel on 28 February 2, 2022. ECF No. 28. This Order follows. 1 II. LEGAL STANDARD 2 There is no constitutional right to appointment of counsel in federal habeas 3 proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Chaney v. Lewis, 801 F.2d 4 1191, 1196 (9th Cir. 1986); see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 5 2002) (quoting Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993) for the proposition that 6 “there is no constitutional right to counsel on federal habeas”) (alteration omitted). 7 Nevertheless, financially eligible habeas petitioners may obtain counsel whenever 8 the court “determines that the interests of justice so require.’” 18 U.S.C. 9 § 3006A(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). Courts 10 have found that the interests of justice require appointment of counsel when the court 11 conducts an evidentiary hearing on the petition. Id. at 1177; Knaubert v. Goldsmith, 791 12 F.2d 722, 728 (9th Cir. 1986). However, when no evidentiary hearing is necessary, 13 appointment of counsel is discretionary. Id. In the Ninth Circuit, indigent prisoners 14 applying for habeas relief are not entitled to appointed counsel “unless the circumstances 15 of a particular case show that appointed counsel is necessary to prevent due process 16 violations.” Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. 17 Section 3006A(a)(2)(B) is not the only source of authority for appointment of 18 counsel to an indigent petitioner in a habeas proceeding. Where, as here, a petitioner has 19 been granted leave to proceed in forma pauperis, courts also have discretion under 28 20 U.S.C. § 1915(e)(1) to provide legal representation to “any person unable to afford 21 counsel.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); see also McDonald v. 22 Waddington, No. C07-0135-JCC-BAT, 2009 WL 302279, at *2 (W.D. Wash. Feb. 6, 2009) 23 (“A court has the discretion to appoint counsel [in a federal habeas proceeding], 18 U.S.C. 24 § 3006A(a) (2)(B); 28 U.S.C. § 1915(e)(1), depending on the prisoner’s ability to articulate 25 his claim in light of the complexity of the legal issues and the likelihood of success on the 26 petition’s merits”) (citing Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 27 To qualify for appointment of counsel under § 1915(e)(1), courts have required that 28 plaintiffs demonstrate they are indigent and that they have made a reasonably diligent effort 1 to secure counsel on their own. Bailey v. Lawford, 835 F. Supp. 550, 552 (S.D. Cal. 1993) 2 (extending the “reasonably diligent effort” standard used in Bradshaw v. Zoological Soc’y 3 of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981) to requests made pursuant to 28 U.S.C. 4 § 1915); see, e.g., Verble v. United States, No. 07cv0472 BEN-BLM, 2008 WL 2156327, 5 at *2 (S.D. Cal. May 22, 2008). But even after a petitioner satisfies the two initial 6 requirements of indigence and a diligent attempt to obtain counsel, “he is entitled to 7 appointment of counsel only if he can [also] show exceptional circumstances.” Bailey, 835 8 F. Supp. at 552 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 9 The Court’s determination of whether such “exceptional circumstances” exist entails 10 “an evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff 11 to articulate his claims pro se in light of the complexity of the legal issues involved.’ 12 Neither of these issues is dispositive and both must be viewed together before reaching a 13 decision.” Terrell, 935 F.2d at 1017 (quoting Wilborn, 789 F.2d at 1331); see also Palmer 14 v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). These same considerations should guide the 15 Court’s discretion in deciding whether to appoint counsel in a habeas proceeding generally. 16 Weygandt, 718 F.2d at 954. 17 III. DISCUSSION 18 Here, the Court acknowledged Petitioner’s indigence when it granted Petitioner’s 19 motion to proceed in forma pauperis. ECF No. 7. However, Petitioner does not include any 20 information in his motion about whether he has attempted to secure counsel on his own. 21 Requiring that litigants “make a reasonably diligent effort to secure counsel before asking 22 the court to appoint counsel for them . . . is ‘not [to] suggest that a plaintiff should be 23 required to exhaust the legal directory before a court could appoint him an attorney. 24 [H]owever, a person’s diligence in attempting to obtain a lawyer to assist him may properly 25 be considered by the district court in assessing the justness of the application for counsel.’” 26 Moore v. Raught, No. 07-03836-VBF-JPR, 2014 WL 1795138, at *7 (C.D. Cal. Mar. 17, 27 2014) (brackets in original) (quoting Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 28 (5th Cir. 1977)). Here, “Plaintiff’s lack of funds alone does not demonstrate that efforts to 1 secure counsel necessarily would be futile.” Vera v. Gipson, No. 13cv870-AWI-MJS-PC, 2 2014 WL 807051, at *5 (E.D. Cal. Feb. 28, 2014). Therefore, Petitioner does not qualify 3 for appointment of counsel under 28 U.S.C. § 1915(e)(1). 4 The Court also finds that the circumstances of the case do not indicate that appointed 5 counsel is necessary to prevent due process violations, or that the interests of justice 6 otherwise require appointment of counsel. See Chaney, 801 F.2d at 1196; 18 U.S.C. 7 § 3006A(a)(2)(B). In support of the motion, Petitioner notes that he has a tenth-grade 8 education and no legal education. ECF No. 28 at 3. Petitioner contends that his claims are 9 legally complex, reiterates that he has demanded an evidentiary hearing, and explains that 10 his case will require discovery and will include conflicting testimony. Id. at 2–5. Petitioner 11 also notes his difficulty in investigating the facts. Id. Petitioner contends that he has been 12 repeatedly exposed to COVID-19 and quarantined, impacting access to the law library and 13 his legal work products. Id. at 3, 5. 14 First, Petitioner’s limited formal education also does not establish exceptional 15 circumstances. See, e.g., Storey v. Paramo, No. 17cv23-LAB-BGS, 2017 U.S. Dist. LEXIS 16 132648, at *5–*6 (S.D. Cal. Aug. 18, 2017) (denying motion for appointment of counsel 17 when the plaintiff indicated his seventh-grade education warranted appointment of 18 counsel); Schneider v. Swarthout, No. 10cv1869-GEB-KJN-P, 2011 WL 2447989, at *1 19 (E.D. Cal. June 20, 2011) (noting denial of petitioner’s motion for appointment of counsel 20 where petitioner alleged having a fourth-grade education level). 21 Second, Petitioner’s lack of legal training and difficulty understanding legal 22 standards and reasoning also do not establish exceptional circumstances. See Griffin v. 23 Zurbano, No. 16cv2715-JLS-WVG, 2017 U.S. Dist. LEXIS 132636, at *3 (S.D. Cal. Aug. 24 18, 2017) (denying motion for appointment of counsel and noting that “Plaintiff’s lack of 25 education in the law and 10th-grade education level have not prevented him from filing 26 very cogent and well-organized documents”); Torbert, 2016 WL 1399230, at *1–*2 27 (denying motion for appointment of counsel when the plaintiff argued that the legal issues 28 were outside of his scope of understanding because of his eighth grade education); cf. 1 McGinnis v. Ramos, No. 15cv2812-JLS-JLB, 2017 U.S. Dist. LEXIS 58507, at *7–*8 2 (S.D. Cal. Apr.17, 2017) (finding that, though plaintiff argued “he is a layman with no legal 3 experience and training and who is confused by complex legal reasoning and about his 4 responsibilities in the case, . . . these burdens are common to most prisoners representing 5 themselves pro se and do not establish the exceptional circumstances that would support 6 the appointment of counsel”). 7 Third, the need for research, investigation, and discovery is common to most 8 litigation and does not automatically qualify the issues in a case as complex. See Wilborn, 9 789 F.2d at 1331; McGinnis, 2017 U.S. Dist. LEXIS 58507, at *7–*8 (same); Miller v. 10 LaMontagne, No. 10cv702-WQH-BGS, 2012 WL 1666735, at *1–*2 (S.D. Cal. May 11, 11 2012) (concluding that plaintiff’s arguments “that this case will involve research and 12 investigation are not based on the complexity of the legal issues involved, but rather on the 13 general difficulty of litigating pro se”); see also Rand v. Rowland, 113 F.3d 1520, 1525 14 (9th Cir. 1997) (holding that while a pro se inmate might fare better with counsel during 15 discovery, this is not the test for determining whether to appoint counsel); Peterson v. 16 Anderson, No. CV09-21-GF-SHE, 2009 WL 4506542, at *3 (D. Mont. Dec. 2, 2009) 17 (“Although Plaintiff contends he is not in a position to litigate this matter, pro se litigants 18 are rarely in a position to research and investigate facts easily. This alone does not deem a 19 case complex.”); cf. Eusse v. Vitela, No. 13cv916-BEN-NLS, 2015 WL 4404865, at *2 20 (S.D. Cal. July 16, 2015) (“Plaintiff asks the Court to appoint counsel because his case 21 requires discovery, he is currently incarcerated and is unable to investigate the facts, and 22 he has limited access to the library. [] However, the need for discovery or difficulties 23 developing the factual record do not constitute the type of ‘exceptional circumstances’ 24 required for appointment of counsel.”). 25 Fourth, though Petitioner contends he should be appointed counsel because he is ill- 26 suited to handle issues of conflicting testimony on his own, these concerns also do not 27 present exceptional circumstances. See, e.g., Eusse, 2015 WL 4404865, at *2; Miller, 2012 28 WL 1666735, at *2. Additionally, at this time, the Court does not find that the claims raised 1 in the Petition are factually or legally complex. See ECF No. 1. Further, there is little before 2 the Court regarding the merits of Petitioner’s case, other than assertions in the operative 3 petition. Thus, at this early stage of the case, when the Respondent has not yet answered 4 the petition, lodged records, or proffered evidence to the Court in support of their claims 5 and defenses, the Court cannot find that Plaintiff is likely to succeed on the merits. ECF 6 No. 30 at 2 (granting Respondent’s request for extension of time to answer); see, e.g., 7 Weygandt, 718 F.2d at 954 (explaining that the likelihood of success on the merits and the 8 ability of the petitioner to articulate his claims pro se in light of the complexity of the legal 9 issues involved are considerations “inextricably enmeshed” with the underlying claim); 10 see, e.g., Bailey, 835 F. Supp. at 552 (denying motion for appointment of counsel when 11 plaintiff requested counsel before defendants responded to his complaint, because plaintiff 12 did not offer any evidence in the motion beyond his own assertions to support his claims, 13 and because it was too early to determine whether any of plaintiff’s claims would succeed 14 on the merits). 15 Fifth, Plaintiff raises the issue that COVID-19 quarantines are inhibiting his ability 16 to pursue his case, access his work product, and access the law library. ECF No. 28 at 3, 5. 17 However, courts in this circuit have declined to find that challenges presented by the 18 COVID-19 pandemic establish exceptional circumstances. Diaz v. Madden, No. 20cv2147- 19 GPC-BGS, 2021 U.S. Dist. LEXIS 32599 at *5–*7 (S.D. Cal. Feb. 22, 2021) (collecting 20 cases); see, e.g., Pitts v. Washington, No. C18-526-RSL-MLP, 2020 WL 2850564, at *1 21 (W.D. Wash. June 2, 2020) (denying motion for appointment of counsel because, 22 “[a]lthough Plaintiff contends he is unable to access the law library because of social 23 distancing, this bare assertion does not justify the appointment of counsel at this time, nor 24 does the COVID-19 pandemic.”); Faultry v. Saechao, No. 18cv1850-KJM-AC-P, 2020 25 WL 2561596, at *2 (E.D. Cal. May 19, 2020) (denying motion for appointment of counsel 26 and explaining that “[c]ircumstances common to most prisoners, such as lack of legal 27 education and limited law library access, do not establish exceptional circumstances 28 supporting appointment of counsel. . . . The impacts of the COVID-19 health crisis on 1 prison operations are also common to all prisoners.”); Snowden v. Yule, No. 2:17-cv-2167- 2 TLN-AC-P, 2020 WL 2539229, at *1 (E.D. Cal. May 19, 2020) (stating that “limited 3 access to the prison law library and resources, particularly during the current COVID-19 4 health crisis” is a circumstance that plaintiff shares with many other prisoners). 5 In the instant case, Petitioner has ably represented himself thus far, providing a 6 thorough and clear statement of each ground for relief in his petition, and the present 7 motion shows that Petitioner is able to write very well and perform legal research. See ECF 8 Nos. 1, 28. Petitioner has also shown a good grasp of litigation procedure thus far. See ECF 9 Nos. 15, 17, 20, 22, 31. Such circumstances do not indicate to the Court that appointment 10 of counsel is necessary to avoid due process violations. See LaMere v. Risley, 827 F.2d 11 622, 626 (9th Cir. 1987) (affirming district court’s denial of request for appointment of 12 counsel where pleadings demonstrated petitioner had “a good understanding of the issues 13 and the ability to present forcefully and coherently his contentions”); Dunsmore v. Paramo, 14 No. 13cv1193-GPC-PCL, 2013 WL 5738774 (S.D. Cal. Oct. 22, 2013) (denying 15 appointment of counsel to a pro se litigant who had a “good grasp of the basis of his claims, 16 and [was] able to articulate them in light of the relative complexity of the legal issues 17 involved”). 18 The Court recognizes the difficulties inherent in proceeding pro se, especially while 19 incarcerated. It is for this reason that in the absence of counsel, federal courts employ 20 procedures that are highly protective of a pro se litigant’s rights. See Haines v. Kerner, 404 21 U.S. 519, 520 (1972) (holding that the pleadings of a pro se inmate must be held to less 22 stringent standards than formal pleadings drafted by lawyers). Thus, as long as a pro se 23 litigant is able to articulate his grounds for relief, as Petitioner has done here, the second 24 “exceptional circumstances” factor that might support the appointment of counsel is not 25 met. 26 Therefore, in its discretion, the Court finds that the interests of justice do not require 27 appointment of counsel in this case. For the same reasons, even if Petitioner had established 28 that he had made a reasonably diligent effort to secure counsel, he would not qualify for 1 appointment of counsel under 28 U.S.C. § 1915(e)(1). However, once the Court has 2 received Petitioner’s traverse, it will determine whether to set an evidentiary hearing in this 3 || case. If the Court sets an evidentiary hearing, Petitioner will be entitled to appointment of 4 ||counsel at that stage. Terrovona, 912 F.2d at 1177. 5 IV. CONCLUSION 6 For the reasons set forth above, the Court DENIES Petitioner’s Motion for 7 || Appointment of Counsel! (ECF No. 28) without prejudice.” 8 9 IT IS SO ORDERED. 10 Dated: February 11, 2022 _ Awan. Honorable Allison H. Goddard 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 02 ' Although the Court has denied Petitioner’s request for counsel, the Court notes that if Petitioner requires additional time to meet a specific deadline in the future, due to any of 23 || the reasons set forth in the instant motion for appointment of counsel, he may file a motion 4 ||for an extension, setting forth good cause for the extension of that deadline. See, e.g., Carroll v. Warden, No. 19cv2126-BAS-KSC, 2021 U.S. Dist. LEXIS 93469, at *2—*5 25 |1(S.D. Cal. May 17, 2021) (noting that, “to the extent restricted access to resources impede 26 || Plaintiff’s ability to prosecute this action going forward, he may seek extensions of time to comply with court-ordered deadlines”). 27 28 Because Petitioner’s motion is denied without prejudice to refiling, Petitioner is free to seek appointment of counsel again in the future.