Mickens v. Smack

Opinion

1 2 3 4

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 The District Court has referred this action filed under 28 U.S.C. § 2254 to United States 16 Magistrate Judge David W. Christel. Currently pending in this action are two motions filed by 17 Petitioner Rory L Mickens: (1) Motion for Extension of Time to File Reply to Respondent’s 18 Response to Petition (“Motion for Extension,” Dkt. 26) and (2) Motion to Stay Proceedings and 19 for an Evidentiary Hearing on the Issues (“Motion for Miscellaneous Relief,” Dkt. 27). 20 The Court grants the Motion for Extension (Dkt. 26) and denies the Motion for 21 Miscellaneous Relief (Dkt. 27) without prejudice. 22

24 1 1. Motion for Extension (Dkt. 26) 2 Petitioner moves for an extension of time to file his response to Respondent’s Answer. 3 Dkt. 26. Respondent does not object to a reasonable extension of time. Dkt. 29. After review of 4 Petitioner’s Motion and the relevant record, the Motion for Extension (Dkt. 26) is granted.

5 Petitioner’s response to the Answer must be filed on or before October 9, 2020. Respondent’s 6 optional reply is due on or before October 16, 2020. The Clerk is directed to re-note the Petition for 7 October 16, 2020. 8 2. Motion for Miscellaneous Relief (Dkt. 27) 9 In the Motion for Miscellaneous relief, Petitioner moves for a stay of the proceedings, the 10 appointment of counsel, and for an evidentiary hearing. Dkt. 27. 11 First, in the caption of the Motion, Petitioner states he is seeking a stay of the 12 proceedings. Dkt. 27 (see caption). However, Petitioner fails to provide any explanation 13 regarding the request relief and makes no argument in support of a stay. See id. Rather, Petitioner 14 appears to offer additional argument in support of the Petition. Petitioner must provide an

15 adequate explanation for the relief he seeks and must provide sufficient factual information for 16 the Court to consider his requests. As Petitioner has not provided any facts regarding his request 17 for a stay or to support his requests, the Court declines to consider the requested relief.1 18

19 1 The Court notes the parties agree Petitioner exhausted his claims in state court. Dkt. 22, 27, 29. Thus, it is not clear 20 why a stay of the proceedings would be necessary. See Mitchell v. Valenzuela, 791 F.3d 1166, 1171 (9th Cir. 2015) (citing Rhines v. Weber, 544 U.S. 269, 277 (2005)) (A stay is appropriate only where (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no 21 indication that the petitioner engaged in intentionally dilatory litigation tactics.”). Nevertheless, because the Court interprets Petitioner’s request for a stay (Dkt. 27) as additional argument in support of the Petition, the Court finds 22 the denial of the Motion for Miscellaneous Relief is nondispositive. “[W]here the denial of a motion to stay is effectively a denial of the ultimate relief sought, such a motion is considered dispositive, and a magistrate judge lacks the authority to ‘determine’ the matter.” S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir.2013) 23 (internal citation omitted). By contrast, a motion to stay is nondispositive where it “[does] not dispose of any claims or defenses and [does] not effectively deny ... any ultimate relief sought.” Id. See also Mitchell v. Valenzuela, 791 24 F.2d 1166, 1170 (9th Cir. 2015). 1 Second, Petitioner moves for an evidentiary hearing. Dkt. 27. In this order, the Court 2 grants Petitioner’s request for an extension to file a response to the Answer, see supra section I. 3 As the response has not been filed and the Petition is not yet ripe for the Court’s consideration, 4 the Court does not find good cause for granting leave to conduct discovery and has not

5 determined an evidentiary hearing will be required. See Rules Governing Section 2254 Cases in 6 the United States District Courts 6(a) and 8(c). Accordingly, Petitioner’s request for an 7 evidentiary hearing (Dkt. 27) is denied as premature. 8 Third, Petitioner moves for the appointment of counsel. Dkt. 27. However, there is no 9 right to appointed counsel in cases brought under 28 U.S.C. § 2254 unless an evidentiary 10 hearing is required or such appointment is necessary for the effective utilization of discovery 11 procedures. See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United States v. Duarte- 12 Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 F.2d 1129, 1130 13 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules Governing Section 14 2254 Cases in the United States District Courts 6(a) and 8(c). The Court may appoint counsel “at

15 any stage of the case if the interest of justice so requires.” Weygandt, 718 F.2d at 954. In 16 deciding whether to appoint counsel, the Court “must evaluate the likelihood of success on the 17 merits as well as the ability of the petitioner to articulate his claims pro se in light of the 18 complexity of the legal issues involved.” Id. 19 As noted above, at this time, the Court does not find good cause for granting leave to 20 conduct discovery and has not determined an evidentiary hearing will be required. See supra; 21 see also Rules Governing Section 2254 Cases in the United States District Courts 6(a) and 8(c). 22 Additionally, Petitioner effectively articulated his grounds for relief raised in the Petition, and 23 the grounds are not factually or legally complex. See Dkt. 8. Petitioner has not shown he is

24 1 likely to succeed on the merits of his case. Moreover, while Petitioner asserts he has “ADHD” 2 and dyslexia, Dkt. 27, Petitioner has not demonstrated he has not been able to formulate 3 responses to the Court’s orders or understand filings in this case. See Dkt. 1, 2, 4, 5, 8, 9, 26, 27. 4 Thus, Petitioner has not shown he is unable to litigate this case without the assistance of counsel.

5 Accordingly, the Court finds Petitioner has not shown appointment of counsel is appropriate at 6 this time, and Petitioner’s request to appoint counsel (Dkt. 27) is denied without prejudice. 7 Dated this 10th day of September, 2020. 8 A 9 David W. Christel 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24