Nelson v. White

• Court: District Court, W.D. Washington
• Decided: October 31, 2022
• Docket: 3:22-cv-05363
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 AUSTIN RICHARD MOORES NELSON, 9 Petitioner, Case No. C22-5363-BJR-MLP 10 v. ORDER 11 DANIEL WHITE, 12 Respondent. 13

14 This is a federal habeas action filed pursuant to 28 U.S.C. § 2254. This matter comes 15 before the Court on Petitioner’s motion for appointment of counsel. (Dkt. # 23.) Petitioner 16 contends he is “not able to understand nor comprehend the intricate and complicated issue of 17 exhaustion argued by the respondents,” citing “a learning disability.” (Id. at 2.) In an 18 accompanying declaration, Petitioner states he has been “having other inmates help [him] get 19 a[n] understanding of the complicated legal issues[.]” (Dkt. # 24 at 1.) He states he “[does not] 20 know how long there will be other people to help [him].” (Id. at 2.) 21 There is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254 22 unless an evidentiary hearing is required, or counsel is necessary for effective discovery. See 23 Terravona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988); Brown v. Vasquez, 952 F.2d 1164, 1 1168 (9th Cir. 1992); Rules Governing Section 2254 Cases in the United States District Courts 2 6(a) and 8(c). The Court may request an attorney to represent indigent civil litigants under 28 3 U.S.C. § 1915(e)(1) but should do so only under “exceptional circumstances.” Agyeman v. 4 Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of exceptional

5 circumstances requires an evaluation of both the likelihood of success on the merits and the 6 ability of the [petitioner] to articulate his claims pro se in light of the complexity of the legal 7 issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). These factors 8 must be viewed together before reaching a decision on a request for counsel under 9 § 1915(e)(1). Id. In addition, the Court may exercise its discretion to appoint counsel for a 10 financially eligible individual where the “interests of justice so require.” 18 U.S.C. § 3006A. 11 Here, the record is not yet sufficiently developed for the Court to determine whether an 12 evidentiary hearing or discovery will be required. Furthermore, Petitioner has not demonstrated 13 that exceptional circumstances exist. Petitioner fails to demonstrate that his case is legally or 14 factually complex. It is clear from Petitioner’s filings to this point that he is capable of clearly

15 articulating his claims and arguments pro se. (See dkt. ## 3, 7.) The Court notes that Petitioner 16 has ably represented himself thus far in the litigation with the resources he has been able to 17 access. 18 As for Petitioner’s likelihood of success on the merits, Petitioner’s motion fails to make 19 any argument or showing demonstrating that he is likely to prevail on the merits of his habeas 20 petition or that the “interests of justice” are best served by appointment of counsel. 21 Accordingly, the Court hereby DENIES Petitioner’s motion for appointment of counsel 22 (dkt. # 23). The Clerk is directed to send copies of this order to the parties and to the Honorable 23 Barbara J. Rothstein. 1 Dated this 31st day of October, 2022. 2 A 3 MICHELLE L. PETERSON United States Magistrate Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23