James v. Jackson

• Court: District Court, W.D. Washington
• Decided: November 30, 2020
• Docket: 3:16-cv-06063
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 ROBERT E. JACKSON, 9 Petitioner, CASE NO. 3:16-cv-06063-RJB-BAT 10 v. ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL, 11 ERIC JACKSON, EVIDENTIARY HEARING, AND EXPANSION OF RECORD 12 Respondent.

13 Petitioner moves for appointment of counsel (Dkt. 37), to supplement the record (Dkt. 14 38), and an evidentiary hearing (Dkt. 41). The Court DENIES each motion. 15 1. Evidentiary Hearing and Expansion of Record 16 The Court denies the motions for an evidentiary hearing and expansion of the record as 17 premature. Petitioner moves for permission to file an amended habeas petition which has not yet 18 been served on respondent. An evidentiary hearing is precluded by Cullen v. Pinholster, 563 19 U.S. 170 (2011), where a petitioner’s federal claims were properly presented to the state courts 20 and the state courts’ rejection of the claims are neither contrary to or an unreasonable application 21 of clearly established Supreme Court law or based upon an unreasonable determination of the 22 facts given the record. It is premature for the Court to make this determination and thus 23 premature for the Court to grant an evidentiary hearing. ORDER DENYING MOTION FOR 1 Pinholster also governs petitioner’s request to further develop or supplement the record 2 through attachments and exhibits. See Runningeagle v. Ryan, 686 F.3d 758, 773–774 (9th Cir. 3 2012) (Pinholster governs discovery, expansion of the record and evidentiary hearings); Neng 4 Saypropha v. Gary Swarthout, Warden, No. 15-16028, 2016 WL 4073503 (9th Cir. Aug. 1,

5 2016) (“Pinholster applies to all requests for evidentiary hearing (and discovery) no matter the 6 subject of the claim; it worked a sea change in federal habeas corpus practice.”). Again, it is 7 premature for the Court to determine whether Pinholster applies and thus premature for the 8 Court to grant a request to expand or supplement the record. 9 2. Appointment of Counsel 10 There is no right to have counsel appointed in cases brought in a federal habeas action 11 unless an evidentiary hearing is required or such appointment is “necessary for the effective 12 utilization of discovery procedures.” See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United 13 States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 14 F.2d 1129, 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules

15 Governing Section 2254 Cases in the United States District Courts 6(a) and 8(c). 16 The Court also may appoint counsel “at any stage of the case if the interest of justice so 17 requires.” Weygandt, 718 F.2d at 954. In deciding whether to appoint counsel, the Court “must 18 evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate 19 his claims pro se in light of the complexity of the legal issues involved.” Id. 20 Petitioner requests appointment of pro bono counsel “to make effective utilization of 21 discovery procedures to demonstrate the validity of his claim,” and the lack of legal research 22 opportunities due to the impact of COVID-19. Id. These are impediments virtually all prisoners 23 face; the court thus concludes petitioner’s conditions of confinement are not such that “the ORDER DENYING MOTION FOR 1 interests of Justice” require appointment of counsel. Moreover, the Court notes plaintiff filed a 2 serviceable petition, litigated his personal restraint petition in the state courts, filed an amended 3 petition, and has filed numerous other motions, all of which establish petitioner has the ability to 4 litigate his own case.

5 The Court has not yet found an evidentiary hearing should be ordered in this case, or 6 whether further evidence may be developed. See Rule Governing Section 2254 Cases in the 7 United States District Courts 8(c). The Court accordingly denies appointment counsel at this 8 point. For the foregoing reasons, the Court ORDERS: 9 (1) Petitioner’s motions for appointment of counsel (Dkt. 37), to supplement the record, 10 (Dkt. 38), and for an evidentiary hearing (Dkt. 41) are DENIED without prejudice. 11 (2) The Clerk shall provide copies of this order to the parties. 12 DATED this 30th day of November, 2020. 13 A 14 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 15

16 17 18 19 20 21 22 23 ORDER DENYING MOTION FOR