1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY FRITHIOF SUNDBERG, Case No.: 3:23-cv-01155-RBM-DDL
12 Petitioner, ORDER: 13 v. (1) DENYING MOTION TO 14 JANINE WALLACE, Executive Director, APPOINT COUNSEL [Dkt. No. 2]; et al., 15 Respondents. and 16
17 (2) REQUIRING RESPONSE TO PETITION (28 U.S.C. § 2254) AND 18 SETTING BRIEFING SCHEDULE 19
20 Petitioner Kelly Frithiof Sundberg (“Sundberg” or “Petitioner”), who is currently in 21 the custody of Patton State Hospital1 and is proceeding pro se, has paid the $5.00 filing fee 22 and filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 23 / / / 24
25 1 Based on a previous petition filed by Petitioner, it appears Petitioner was found “not 26 guilty by reason of insanity” in criminal proceedings which took place in San Diego 27 Superior Court in 1999 and has been confined at Patton State Hospital since that time. See Dkt. No.1 at 2; see also Sundberg v. Oreol, S.D. Cal. Civil Case No. 3:16-cv-03127-WQH- 28 1 MOTION TO APPOINT COUNSEL 2 The Sixth Amendment right to counsel does not extend to federal habeas corpus 3 actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Knaubert v. 4 Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible habeas 5 petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever 6 the court “determines that the interests of justice so require.’” 18 U.S.C. § 3006A(a)(2)(B); 7 Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 8 1228, 1234 (9th Cir. 1984). The interests of justice require appointment of counsel when 9 the court conducts an evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; 10 Knaubert, 791 F.2d at 728; Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel 11 is discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; 12 Knaubert, 791 F.2d at 728. At this point in the proceedings, there has been no request for 13 an evidentiary hearing or a determination that an evidentiary hearing is necessary and thus 14 the decision whether to appoint counsel is discretionary. 15 “In deciding whether to appoint counsel in a habeas proceeding, the district court 16 must evaluate the likelihood of success on the merits as well as the ability of the petitioner 17 to articulate his claims pro se in light of the complexity of the legal issues involved.” 18 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). In the Ninth Circuit, 19 “[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel 20 unless the circumstances of a particular case indicate that appointed counsel is necessary 21 to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 22 Knaubert, 791 F.2d at 728-29. However, “[t]he procedures employed by the federal courts 23 are highly protective of a pro se petitioner’s rights [and] [t]he district court is required to 24 construe a pro se petition more liberally than it would construe a petition drafted by 25 counsel.” Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) 26 (holding pro se complaint to less stringent standard) (per curiam)). 27 The Petition in this case was pleaded sufficiently to warrant this Court’s order 28 directing Respondent to file an Answer or other responsive pleading to the Petition. Thus, 1 Sundberg has sufficiently represented himself to date. Moreover, it is too early in the 2 proceedings for the Court to determine whether Sundberg has any likelihood of success on 3 the merits. Accordingly, the Court finds the interests of justice do not warrant the 4 appointment of counsel in this case at this time, and the Court DENIES Sundberg’s motion 5 for appointment of counsel without prejudice. 6 ORDER REQUIRING RESPONSE 7 The Court has conducted a preliminary review of the Petition. In accordance with 8 Rule 4 of the rules governing petitions for a writ of habeas corpus pursuant to 28 U.S.C. 9 § 2254, IT IS ORDERED that: 10 1. The Clerk of this Court must promptly (a) serve a copy of the Petition and a 11 copy of this Order on the Attorney General for the State of California, or his authorized 12 agent; and (b) serve a copy of this Order on Petitioner. 13 2. Respondent must file a “Notice of Appearance” no later than July 31, 2023. 14 3. If Respondent contends the Petition can be decided without the Court’s 15 reaching the merits of Petitioner’s claims (e.g., because Respondent contends Petitioner 16 has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, 17 or that the Petition is barred by the statute of limitations, or that the Petition is subject to 18 dismissal under Rule 9 of the Rules Governing § 2254 Cases, or that all of the claims are 19 procedurally defaulted, or that Petitioner is not in custody), Respondent must file a motion 20 to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later than 21 September 15, 2023. The motion to dismiss must not address the merits of Petitioner’s 22 claims, but rather must address all grounds upon which Respondent contends dismissal 23 without reaching the merits of Petitioner’s claims is warranted.2 At the time the motion to 24 dismiss is filed, Respondent must lodge with the Court all records bearing on Respondent’s 25 26 27 2 If Respondent contends Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, the motion to dismiss must also specify the 28 1 contention in this regard. A hearing date is not required for the motion to dismiss. 2 4. If Respondent files a motion to dismiss, Petitioner must file his opposition, if 3 any, to the motion no later than October 16, 2023. At the time the opposition is filed, 4 Petitioner must lodge with the Court any records not lodged by Respondent which 5 Petitioner believes may be relevant to the Court’s determination of the motion. 6 5. Unless the Court orders otherwise, Respondent must not file a reply to 7 Petitioner’s opposition to a motion to dismiss. If the motion is denied, the Court will afford 8 Respondent adequate time to respond to Petitioner’s claims on the merits. 9 6. If Respondent does not contend that the Petition can be decided without the 10 Court reaching the merits of Petitioner’s claims, Respondent must file and serve an answer 11 to the Petition, and a memorandum of points and authorities in support of such answer, 12 pursuant to Rule 5 of the Rules Governing § 2254 Cases no later than September 15, 13 2023. At the time the answer is filed, Respondent must lodge with the Court all records 14 bearing on the merits of Petitioner’s claims.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY FRITHIOF SUNDBERG, Case No.: 3:23-cv-01155-RBM-DDL
12 Petitioner, ORDER: 13 v. (1) DENYING MOTION TO 14 JANINE WALLACE, Executive Director, APPOINT COUNSEL [Dkt. No. 2]; et al., 15 Respondents. and 16
17 (2) REQUIRING RESPONSE TO PETITION (28 U.S.C. § 2254) AND 18 SETTING BRIEFING SCHEDULE 19
20 Petitioner Kelly Frithiof Sundberg (“Sundberg” or “Petitioner”), who is currently in 21 the custody of Patton State Hospital1 and is proceeding pro se, has paid the $5.00 filing fee 22 and filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 23 / / / 24
25 1 Based on a previous petition filed by Petitioner, it appears Petitioner was found “not 26 guilty by reason of insanity” in criminal proceedings which took place in San Diego 27 Superior Court in 1999 and has been confined at Patton State Hospital since that time. See Dkt. No.1 at 2; see also Sundberg v. Oreol, S.D. Cal. Civil Case No. 3:16-cv-03127-WQH- 28 1 MOTION TO APPOINT COUNSEL 2 The Sixth Amendment right to counsel does not extend to federal habeas corpus 3 actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Knaubert v. 4 Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible habeas 5 petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever 6 the court “determines that the interests of justice so require.’” 18 U.S.C. § 3006A(a)(2)(B); 7 Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 8 1228, 1234 (9th Cir. 1984). The interests of justice require appointment of counsel when 9 the court conducts an evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; 10 Knaubert, 791 F.2d at 728; Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel 11 is discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; 12 Knaubert, 791 F.2d at 728. At this point in the proceedings, there has been no request for 13 an evidentiary hearing or a determination that an evidentiary hearing is necessary and thus 14 the decision whether to appoint counsel is discretionary. 15 “In deciding whether to appoint counsel in a habeas proceeding, the district court 16 must evaluate the likelihood of success on the merits as well as the ability of the petitioner 17 to articulate his claims pro se in light of the complexity of the legal issues involved.” 18 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). In the Ninth Circuit, 19 “[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel 20 unless the circumstances of a particular case indicate that appointed counsel is necessary 21 to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 22 Knaubert, 791 F.2d at 728-29. However, “[t]he procedures employed by the federal courts 23 are highly protective of a pro se petitioner’s rights [and] [t]he district court is required to 24 construe a pro se petition more liberally than it would construe a petition drafted by 25 counsel.” Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) 26 (holding pro se complaint to less stringent standard) (per curiam)). 27 The Petition in this case was pleaded sufficiently to warrant this Court’s order 28 directing Respondent to file an Answer or other responsive pleading to the Petition. Thus, 1 Sundberg has sufficiently represented himself to date. Moreover, it is too early in the 2 proceedings for the Court to determine whether Sundberg has any likelihood of success on 3 the merits. Accordingly, the Court finds the interests of justice do not warrant the 4 appointment of counsel in this case at this time, and the Court DENIES Sundberg’s motion 5 for appointment of counsel without prejudice. 6 ORDER REQUIRING RESPONSE 7 The Court has conducted a preliminary review of the Petition. In accordance with 8 Rule 4 of the rules governing petitions for a writ of habeas corpus pursuant to 28 U.S.C. 9 § 2254, IT IS ORDERED that: 10 1. The Clerk of this Court must promptly (a) serve a copy of the Petition and a 11 copy of this Order on the Attorney General for the State of California, or his authorized 12 agent; and (b) serve a copy of this Order on Petitioner. 13 2. Respondent must file a “Notice of Appearance” no later than July 31, 2023. 14 3. If Respondent contends the Petition can be decided without the Court’s 15 reaching the merits of Petitioner’s claims (e.g., because Respondent contends Petitioner 16 has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, 17 or that the Petition is barred by the statute of limitations, or that the Petition is subject to 18 dismissal under Rule 9 of the Rules Governing § 2254 Cases, or that all of the claims are 19 procedurally defaulted, or that Petitioner is not in custody), Respondent must file a motion 20 to dismiss pursuant to Rule 4 of the Rules Governing § 2254 Cases no later than 21 September 15, 2023. The motion to dismiss must not address the merits of Petitioner’s 22 claims, but rather must address all grounds upon which Respondent contends dismissal 23 without reaching the merits of Petitioner’s claims is warranted.2 At the time the motion to 24 dismiss is filed, Respondent must lodge with the Court all records bearing on Respondent’s 25 26 27 2 If Respondent contends Petitioner has failed to exhaust any state remedies as to any ground for relief alleged in the Petition, the motion to dismiss must also specify the 28 1 contention in this regard. A hearing date is not required for the motion to dismiss. 2 4. If Respondent files a motion to dismiss, Petitioner must file his opposition, if 3 any, to the motion no later than October 16, 2023. At the time the opposition is filed, 4 Petitioner must lodge with the Court any records not lodged by Respondent which 5 Petitioner believes may be relevant to the Court’s determination of the motion. 6 5. Unless the Court orders otherwise, Respondent must not file a reply to 7 Petitioner’s opposition to a motion to dismiss. If the motion is denied, the Court will afford 8 Respondent adequate time to respond to Petitioner’s claims on the merits. 9 6. If Respondent does not contend that the Petition can be decided without the 10 Court reaching the merits of Petitioner’s claims, Respondent must file and serve an answer 11 to the Petition, and a memorandum of points and authorities in support of such answer, 12 pursuant to Rule 5 of the Rules Governing § 2254 Cases no later than September 15, 13 2023. At the time the answer is filed, Respondent must lodge with the Court all records 14 bearing on the merits of Petitioner’s claims. The lodgments must be accompanied by a 15 notice of lodgment which must be captioned “Notice of Lodgment in 28 U.S.C. § 2254 16 Habeas Corpus Case — To Be Sent to Clerk’s Office.” Respondent must not combine 17 separate pleadings, orders, or other items into a combined lodgment entry. Each item must 18 be numbered separately and sequentially. 19 7. Petitioner may file a traverse to matters raised in the answer no later than 20 October 16, 2023. Any traverse by Petitioner (a) must state whether Petitioner admits or 21 denies each allegation of fact contained in the answer; (b) must be limited to facts or 22 arguments responsive to matters raised in the answer; and (c) must not raise new grounds 23 for relief that were not asserted in the Petition. Grounds for relief withheld until the 24 traverse will not be considered. No traverse can exceed ten (10) pages in length absent 25 advance leave of Court for good cause shown. 26 8. A request by a party for an extension of time within which to file any of the 27 pleadings required by this Order must be made at least seven (7) days in advance of the 28 due date of the pleading, and the Court will grant such a request only upon a showing of 1 || good cause. Any such request must be accompanied by a declaration under penalty of 2 || perjury explaining why an extension of time is necessary. 3 9. Unless otherwise ordered by the Court, this case will be deemed submitted on 4 || the day following the date Petitioner’s opposition to a motion to dismiss and/or his traverse 5 due. 6 10. Every document delivered to the Court must include a certificate of service 7 || attesting that a copy of such document was served on opposing counsel (or on the opposing 8 party, if such party is not represented by counsel). Any document delivered to the Court 9 || without a certificate of service will be returned to the submitting party and will be 10 || disregarded by the Court. 11 11. Petitioner must immediately notify the Court and counsel for Respondent of 12 change of Petitioner’s address. If Petitioner fails to keep the Court informed of where 13 || Petitioner may be contacted, this action will be subject to dismissal for failure to prosecute. 14 IT IS SO ORDERED. 15 ||Dated: July 12, 2023 aoe LZ 16 7 2 Cie Loe, a 17 Honorable David D. Leshner 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28