(HC) Tapia v. Cisneros

• Court: District Court, S.D. California
• Decided: March 10, 2022
• Docket: 3:22-cv-00283
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAIME G. TAPIA, Case No.: 3:22-cv-00283-LL-RBM

12 Petitioner, ORDER DENYING MOTION TO 13 v. APPOINT COUNSEL AND DISMISSING CASE WITHOUT 14 T. CISNEROS, Warden, PREJUDICE 15 Respondent. [ECF Nos. 1, 2] 16 17 On February 25, 2022, Petitioner, a California prisoner proceeding pro se,1 filed a 18 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”) in the 19 District Court for the Eastern District of California. ECF No. 1. The Petition was 20 accompanied by a Motion to Appoint Counsel. ECF No. 2. The Petition was transferred 21 to this Court because it challenges a conviction from the San Diego County Superior Court. 22 ECF No. 3. 23 FAILURE TO SATISFY FILING FEE REQUIREMENT 24 Petitioner has neither paid the $5.00 filing fee nor submitted an application to 25

26 1 In reviewing Petitioner’s Petition, the Court is mindful that “[a] document filed pro 27 se is to be liberally construed … and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 28 1 proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either 2 paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES 3 the case without prejudice. To have this case reopened, Petitioner must submit, no later 4 than May 9, 2022, a copy of this Order with the $5.00 fee or adequate proof of his inability 5 to pay the fee. 6 FAILURE TO SIGN PETITION UNDER PENALTY OF PERJURY 7 Rule 2(c) of the Rules Governing Section 2254 Cases provides that “[t]he petition 8 must be printed, typewritten or legibly handwritten; and be signed under penalty of perjury 9 by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. 10 § 2242.” Rule 2(c), 28 U.S.C. foll. § 2254 (emphasis added). Here, Petitioner has not 11 signed the Petition under penalty of perjury, but merely as “Respectfully Submitted.” ECF 12 No. 1 at 15. 13 FAILURE TO USE PROPER FORM 14 Additionally, a Petition for a Writ of Habeas Corpus must be submitted in 15 accordance with the Local Rules of the United States District Court for the Southern 16 District of California. See Rule 2(d), 28 U.S.C. foll. § 2254. In order to comply with the 17 Local Rules, the petition must be submitted upon a court-approved form and in accordance 18 with the instructions approved by the Court. Id.; S. D. Cal. Civ. R. HC.2(b). Petitioner 19 has not submitted his application for writ of habeas corpus on a court-approved form. 20 MOTION TO APPOINT COUNSEL 21 Petitioner requests appointment of counsel due to his (1) inability to afford private 22 counsel, (2) status as an incarcerated person, (3) inexperience with legal matters, (3) limited 23 access to the prison law library, (4) lack of formal education, and (5) inability to speak 24 English. ECF No. 2 at 2-4. The Sixth Amendment right to counsel does not extend to 25 federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 26 (1991); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Financially eligible 27 habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain counsel when 28 “the district court ‘determines that the interests of justice so require.’” Terrovona v. 1 || Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) (quoting 18 U.S.C. § 3006A(a)(2)(B)). 2 || Appointment of counsel is discretionary where no evidentiary hearing or discovery is 3 ||necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728. 4 “Indigent state prisoners applying for habeas relief are not entitled to appointed 5 ||counsel unless the circumstances of a particular case indicate that appointed counsel is 6 ||necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1101, 1196 (9th 7 || Cir. 1986); Knaubert, 791 F.2d at 728-29. Failure to appoint counsel may result in a due 8 process violation if the issues involved are too complex for the petitioner. Hawkins v. 9 || Bennett, 423 F.2d 948, 950 (8th Cir. 1970). 10 The interests of justice do not warrant appointment of counsel at this time. Petitioner 11 || has sufficiently articulated his claims, which he indicates were addressed by the California 12 ||Supreme and Appellate Courts. ECF No. 1 at 2. There has yet to be a response to the 13 || Petition to determine whether the issues presented in this case are complex. Accordingly, 14 || Petitioner’s Motion to Appoint Counsel is DENIED without prejudice. Petitioner may 15 renew his request at a later time. 16 CONCLUSION AND ORDER 17 For the foregoing reasons, Petitioner’s Motion to Appoint Counsel is DENIED 18 || without prejudice, and the Petition is DISMISSED without prejudice. To have this case 19 || re-opened, Petitioner must submit, no later than May 9, 2022, a First Amended Petition 20 || which cures the defects identified in this Order. The Clerk of Court shall send a blank 21 ||Southern District of California amended petition form and a blank Southern District of 22 || California Jn Forma Pauperis application to Petitioner along with a copy of this Order. 23 IT IS SO ORDERED. 24 || DATED: March 10, 2022 25 HON. LINDA LOPEZ 6 United States District Judge 27 28