Mickens v. Smack

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 Rory L Mickens, CASE NO. 3:20-cv-05325-RBL-DWC 11 Petitioner, ORDER 12 v.

13 Ron Haynes, 14 Respondent.

15 16 The District Court has referred this action filed under 28 U.S.C. § 2254 to United States 17 Magistrate Judge David W. Christel. Currently pending in this action is Petitioner Rory L 18 Micken’s Motion for Appointment of Counsel (“Motion”). Dkt. 9.1 19 There is no right appointed counsel in cases brought under 28 U.S.C. § 2254 unless an 20 evidentiary hearing is required or such appointment is necessary for the effective utilization of 21 discovery procedures. See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United States v. 22

23 1 The Clerk’s Office docketed Petitioner’s attachment as a “Second Motion,” but it appears to be further 24 argument and documentation in support of his Motion. See Dkt. 9-1. 1 Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 F.2d 1129, 2 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules Governing 3 Section 2254 Cases in the United States District Courts 6(a) and 8(c). The Court may appoint 4 counsel “at any stage of the case if the interest of justice so requires.” Weygandt, 718 F.2d at

5 954. In deciding whether to appoint counsel, the Court “must evaluate the likelihood of success 6 on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the 7 complexity of the legal issues involved.” Id. 8 Here, Petitioner asserts he is has Attention Deficit Disorder (“ADD”) and dyslexia. Dkt. 9 9. Plaintiff alleges that he has problems writing and concentrating. Dkt. 9 at 1. Plaintiff further 10 states that he has trouble staying on task and formulating complex legal writing. Dkt. 9 -1 at 1. 11 At this time, the Court does not find good cause for granting leave to conduct discovery 12 and has not determined an evidentiary hearing will be required. See Rules Governing Section 13 2254 Cases in the United States District Courts 6(a) and 8(c). Additionally, Petitioner effectively 14 articulated his grounds for relief raised in the Petition, and the grounds are not factually or

15 legally complex. See Dkt. 8. Petitioner has also not shown he is likely to succeed on the merits 16 of his case. 17 While Petitioner states he has trouble writing and concentrating, he has successfully filed 18 a complete Motion to Proceed In Forma Pauperis after being notified of a deficiency, the 19 Petition, and this Motion, all of which are are clear and understandable to the Court. Dkt. 1, 2, 4, 20 5, 8, 9. The Court finds Petitioner has been able formulate responses to the Court’s orders and 21 understand filings in this case. See id. Thus, Petitioner has not shown he is unable to litigate this 22 case without the assistance of counsel because of his ADD and dyslexia. 23

24 1 The Court finds Petitioner has not shown appointment of counsel is appropriate at this 2 time. Therefore, the Motion for the Appointment of Counsel (Dkt. 9) is denied without 3 prejudice. 4

5 Dated this 21st day of May, 2020. 6 A 7 David W. Christel 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24