1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MAHAMAD HUSSEIN SAYIDIN, Case No. 2:24-cv-00098-JNW-TLF 7 Petitioner, v. ORDER RECONSIDERING AND 8 GRANTING MOTIONS TO JACK WARNER, APPOINT COUNSEL, 9 APPOINTING PUBLIC Respondent. DEFENDER, AND RE-NOTING 10 ANSWER AND MOTIONS
11 This is a federal habeas action filed under 28 U.S.C. § 2254. Dkt. 3. Petitioner 12 Mahamad Hussein Sayidin is currently confined at Monroe Correctional Complex, 13 Special Offenders Unit (MCC-SOU), in Monroe, Washington. Id. Petitioner previously 14 filed two requests for appointment of counsel. Dkts. 4, 7. Respondent opposed the 15 requests. Dkt. 10. 16 By order dated June 7, 2024, the Court informed petitioner that, for the Court to 17 properly evaluate his requests for counsel, petitioner must demonstrate that he is 18 financially eligible for such an appointment. Dkt. 16; See 18 U.S.C. § 3006A(a)(2)(B). 19 Accordingly, the Court ordered petitioner to provide a financial affidavit to support his 20 requests for appointment of counsel on or before June 19, 2024. Id. Petitioner failed to 21 provide the financial affidavit form by June 19, 2024, and by order dated July 3, 2024, 22 the Court denied petitioner’s motions for appointment of counsel without prejudice. Dkt. 23 17. The Court indicated that petitioner may file a motion for appointment of counsel if he 24 1 submits to the Court the necessary financial affidavit to support his request, and the 2 Court will consider appointing counsel if the financial affidavit shows that his financial 3 situation is such that he qualifies for appointment of counsel. Id. 4 On July 9, 2024, the Court received the financial affidavit from petitioner along
5 with a letter from petitioner reiterating his request for appointment of counsel. Dkt. 18. 6 The Court’s receipt of the financial affidavit appears to have been delayed due to the 7 fact that it was sent by mail rather than filed electronically. Id. Petitioner’s affidavit 8 demonstrates he is financially eligible for appointment of counsel. Id. 9 In light of this additional information, the Court has reviewed the docket, 10 particularly the motions for appointment of counsel (Dkts. 4, 7), the newly filed financial 11 affidavit, and respondent’s brief in response to petitioner’s motions (Dkt. 10), and 12 concludes that appointment of counsel is appropriate in this case. Accordingly, as 13 discussed below, the Court GRANTS petitioner’s requests for appointment of counsel 14 (Dkts. 4, 7) and will appoint the Federal Public Defender (FPD), or designee of FPD,
15 such as a panel attorney from the CJA, to represent petitioner in this matter. 16 The record shows that petitioner was convicted of first-degree robbery and 17 sentenced to 171 months of incarceration. Dkt. 9-1 at 134, Ex. 3. In his federal habeas 18 petition, petitioner appears to raise the following claims: (1) ineffective assistance of trial 19 counsel for lack of communication, failure to hire an expert to testify on his behalf, and 20 failure to present mental health evidence, Dkt. 3 at 5-6, 11-13; (2) ineffective assistance 21 of appellate counsel in failing to raise the ineffective assistance of trial counsel on direct 22 appeal, id. at 5; (3) incompetency to stand trial, id. at 7; (4) violation of the confrontation 23 clause, id. at 12; (5) improper exclusion of evidence at trial, id. at 14; (6) prosecutorial
24 1 misconduct, id. at 15; (7) violation of right to be present at trial, id. at 10, 15-16; (8) 2 violation of right to obtain an expert witness, id. at 12; (9) violation of petitioner’s right to 3 testify on his own behalf, id. at 16. 4 Respondent has filed a response alleging that petitioner has exhausted only one
5 of his several claims – the violation of his right to be present at trial. Dkt. 8. Respondent 6 argues that the petition is “mixed” and that petitioner fails to show “good cause” for 7 failing to exhaust his unexhausted claims as required to support a stay of proceedings 8 under Rhines v. Weber, 544 U.S. 269 (2005). Id. Accordingly, respondent argues the 9 Court should give petitioner the option of dismissing his unexhausted claims and 10 proceeding on his sole exhausted claim or dismissing his entire petition without 11 prejudice. Id. Petitioner has filed a “motion to dismiss unexhausted claims” (Dkt. 12) and 12 a “motion to amend” (Dkt. 13) in which he appears to indicate that he wishes to proceed 13 on the sole claim that his right to be present at trial was violated. Id. 14 Petitioner has requested appointment of counsel, noting he has significant
15 mental health challenges, is suffering from the effects of a traumatic brain injury, that 16 English is his second language, and reasserting the claims he sets forth in his petition. 17 Dkts. 4, 7. Respondent opposes the motion arguing that the motion is premature in light 18 of the fact that the petition is “mixed”, that petitioner has adequately articulated his 19 claims, that the only exhausted claim was also clearly articulated by counsel on his 20 direct appeal, and that petitioner fails to show a likelihood of success on the merits. Dkt. 21 10. 22 The Court notes that the record appears to indicate that there were significant 23 issues related to petitioner’s competency after his arrest. The Washington Court of
24 1 Appeals noted that “between 2016 [when petitioner was arrested] and August 2021, 2 [petitioner] went from the King County Jail to Western State Hospital (Western) at least 3 six times.” Dkt. 9-1, Ex. 3, at 123. Petitioner was found incompetent to stand trial in April 4 2018 and November 2018 and was found competent in October 2018, May 2019,
5 August 2020, and December 2020. Id., Ex. 3, at 125. According to the Washington 6 Court of Appeals, petitioner also “refused to appear at many of the competency or 7 pretrial hearings and, when he did appear, either voluntarily or via a drag order, the trial 8 court frequently had to have him removed for disrupting the proceedings.” Id., Ex. 3, at 9 128-29. Before sentencing, the trial court entered findings of fact and conclusions of law 10 that “[Petitioner] had voluntarily absented himself from trial and had thus waived his 11 right to be present at his trial.” Id., Ex. 3, at 134. 12 There is no right to appointed counsel in cases brought under 28 U.S.C. § 2254 13 unless an evidentiary hearing is required or such appointment is necessary for the 14 effective utilization of discovery procedures. See McCleskey v. Zant, 499 U.S. 467, 495
15 (1991); United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United 16 States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 17 952, 954 (9th Cir. 1983); Rules Governing Section 2254 Cases in the United States 18 District Courts 6(a) and 8(c). However, the Court may appoint counsel “at any stage of 19 the case if the interest of justice so require.” Weygandt, 718 F.2d at 954. In deciding 20 whether to appoint counsel, the Court “must evaluate the likelihood of success on the 21 merits as well as the ability of the petitioner to articulate his claims pro se in light of the 22 complexity of the legal issues involved.” Id. 23
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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MAHAMAD HUSSEIN SAYIDIN, Case No. 2:24-cv-00098-JNW-TLF 7 Petitioner, v. ORDER RECONSIDERING AND 8 GRANTING MOTIONS TO JACK WARNER, APPOINT COUNSEL, 9 APPOINTING PUBLIC Respondent. DEFENDER, AND RE-NOTING 10 ANSWER AND MOTIONS
11 This is a federal habeas action filed under 28 U.S.C. § 2254. Dkt. 3. Petitioner 12 Mahamad Hussein Sayidin is currently confined at Monroe Correctional Complex, 13 Special Offenders Unit (MCC-SOU), in Monroe, Washington. Id. Petitioner previously 14 filed two requests for appointment of counsel. Dkts. 4, 7. Respondent opposed the 15 requests. Dkt. 10. 16 By order dated June 7, 2024, the Court informed petitioner that, for the Court to 17 properly evaluate his requests for counsel, petitioner must demonstrate that he is 18 financially eligible for such an appointment. Dkt. 16; See 18 U.S.C. § 3006A(a)(2)(B). 19 Accordingly, the Court ordered petitioner to provide a financial affidavit to support his 20 requests for appointment of counsel on or before June 19, 2024. Id. Petitioner failed to 21 provide the financial affidavit form by June 19, 2024, and by order dated July 3, 2024, 22 the Court denied petitioner’s motions for appointment of counsel without prejudice. Dkt. 23 17. The Court indicated that petitioner may file a motion for appointment of counsel if he 24 1 submits to the Court the necessary financial affidavit to support his request, and the 2 Court will consider appointing counsel if the financial affidavit shows that his financial 3 situation is such that he qualifies for appointment of counsel. Id. 4 On July 9, 2024, the Court received the financial affidavit from petitioner along
5 with a letter from petitioner reiterating his request for appointment of counsel. Dkt. 18. 6 The Court’s receipt of the financial affidavit appears to have been delayed due to the 7 fact that it was sent by mail rather than filed electronically. Id. Petitioner’s affidavit 8 demonstrates he is financially eligible for appointment of counsel. Id. 9 In light of this additional information, the Court has reviewed the docket, 10 particularly the motions for appointment of counsel (Dkts. 4, 7), the newly filed financial 11 affidavit, and respondent’s brief in response to petitioner’s motions (Dkt. 10), and 12 concludes that appointment of counsel is appropriate in this case. Accordingly, as 13 discussed below, the Court GRANTS petitioner’s requests for appointment of counsel 14 (Dkts. 4, 7) and will appoint the Federal Public Defender (FPD), or designee of FPD,
15 such as a panel attorney from the CJA, to represent petitioner in this matter. 16 The record shows that petitioner was convicted of first-degree robbery and 17 sentenced to 171 months of incarceration. Dkt. 9-1 at 134, Ex. 3. In his federal habeas 18 petition, petitioner appears to raise the following claims: (1) ineffective assistance of trial 19 counsel for lack of communication, failure to hire an expert to testify on his behalf, and 20 failure to present mental health evidence, Dkt. 3 at 5-6, 11-13; (2) ineffective assistance 21 of appellate counsel in failing to raise the ineffective assistance of trial counsel on direct 22 appeal, id. at 5; (3) incompetency to stand trial, id. at 7; (4) violation of the confrontation 23 clause, id. at 12; (5) improper exclusion of evidence at trial, id. at 14; (6) prosecutorial
24 1 misconduct, id. at 15; (7) violation of right to be present at trial, id. at 10, 15-16; (8) 2 violation of right to obtain an expert witness, id. at 12; (9) violation of petitioner’s right to 3 testify on his own behalf, id. at 16. 4 Respondent has filed a response alleging that petitioner has exhausted only one
5 of his several claims – the violation of his right to be present at trial. Dkt. 8. Respondent 6 argues that the petition is “mixed” and that petitioner fails to show “good cause” for 7 failing to exhaust his unexhausted claims as required to support a stay of proceedings 8 under Rhines v. Weber, 544 U.S. 269 (2005). Id. Accordingly, respondent argues the 9 Court should give petitioner the option of dismissing his unexhausted claims and 10 proceeding on his sole exhausted claim or dismissing his entire petition without 11 prejudice. Id. Petitioner has filed a “motion to dismiss unexhausted claims” (Dkt. 12) and 12 a “motion to amend” (Dkt. 13) in which he appears to indicate that he wishes to proceed 13 on the sole claim that his right to be present at trial was violated. Id. 14 Petitioner has requested appointment of counsel, noting he has significant
15 mental health challenges, is suffering from the effects of a traumatic brain injury, that 16 English is his second language, and reasserting the claims he sets forth in his petition. 17 Dkts. 4, 7. Respondent opposes the motion arguing that the motion is premature in light 18 of the fact that the petition is “mixed”, that petitioner has adequately articulated his 19 claims, that the only exhausted claim was also clearly articulated by counsel on his 20 direct appeal, and that petitioner fails to show a likelihood of success on the merits. Dkt. 21 10. 22 The Court notes that the record appears to indicate that there were significant 23 issues related to petitioner’s competency after his arrest. The Washington Court of
24 1 Appeals noted that “between 2016 [when petitioner was arrested] and August 2021, 2 [petitioner] went from the King County Jail to Western State Hospital (Western) at least 3 six times.” Dkt. 9-1, Ex. 3, at 123. Petitioner was found incompetent to stand trial in April 4 2018 and November 2018 and was found competent in October 2018, May 2019,
5 August 2020, and December 2020. Id., Ex. 3, at 125. According to the Washington 6 Court of Appeals, petitioner also “refused to appear at many of the competency or 7 pretrial hearings and, when he did appear, either voluntarily or via a drag order, the trial 8 court frequently had to have him removed for disrupting the proceedings.” Id., Ex. 3, at 9 128-29. Before sentencing, the trial court entered findings of fact and conclusions of law 10 that “[Petitioner] had voluntarily absented himself from trial and had thus waived his 11 right to be present at his trial.” Id., Ex. 3, at 134. 12 There is no right to appointed counsel in cases brought under 28 U.S.C. § 2254 13 unless an evidentiary hearing is required or such appointment is necessary for the 14 effective utilization of discovery procedures. See McCleskey v. Zant, 499 U.S. 467, 495
15 (1991); United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United 16 States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 17 952, 954 (9th Cir. 1983); Rules Governing Section 2254 Cases in the United States 18 District Courts 6(a) and 8(c). However, the Court may appoint counsel “at any stage of 19 the case if the interest of justice so require.” Weygandt, 718 F.2d at 954. In deciding 20 whether to appoint counsel, the Court “must evaluate the likelihood of success on the 21 merits as well as the ability of the petitioner to articulate his claims pro se in light of the 22 complexity of the legal issues involved.” Id. 23
24 1 In weighing the relevant factors, the Court is persuaded that, given the apparent 2 issues surrounding petitioner’s competency after his arrest and leading up to his trial, 3 his assertion of ongoing mental health issues and traumatic brain injury, as well as the 4 potentially complex issues presented by his petition including his competency and his
5 absence from his criminal trial, that the interests of justice support the appointment of 6 counsel for petitioner. See 18 U.S.C. § 3006A(a)(2)(B). As required by statute, petitioner 7 has now demonstrated financial eligibility for such appointment. See id.; Dkt. 18. 8 Thus, the Court reconsiders petitioner’s requests for appointment of counsel 9 (Dkts. 4, 7) and GRANTS petitioner’s motions for appointment of counsel (Dkts. 4, 7). 10 The Court appoints the Federal Public Defender, or designee, to represent 11 petitioner in these proceedings. The Clerk is directed to re-note respondent’s 12 response to the habeas petition (Dkt. 8) and petitioner’s “motion to dismiss unexhausted 13 claims” (Dkt. 12) and “motion to amend the complaint” (Dkt. 13) to August 16, 2024. By 14 August 12, 2024, petitioner’s counsel should file a response to the respondent’s
15 response to the habeas petition (Dkt. 8) specifically addressing the issue of the “mixed 16 petition” and should indicate to the Court whether petitioner intends to proceed with the 17 current “motion to dismiss unexhausted claims” (Dkt. 12) and “motion to amend 18 complaint” (Dkt. 13). 19 // 20 // 21 // 22 23
24 1 The Clerk shall send copies of this Order to petitioner, to the Federal Public 2 Defender, to the Washington State Attorney General’s Office, and to the Honorable 3 Jamal N. Whitehead. 4 Dated this 11th day of July, 2024.
5 6 A 7 Theresa L. Fricke 8 United States Magistrate Judge
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