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