Williams v. Fisher

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 TOMMY LEE WILLIAMS, Case No.: 23-CV-423-TWR-WVG

13 Petitioner, ORDER DENYING MOTION TO 14 v. APPOINT COUNSEL

15 RATHEL FISHER, [Doc. No. 16] 16 Respondent. 17 18 19 On August 15, 2023, Petitioner Tommy Lee Williams (“Petitioner”), proceeding pro 20 se in this habeas corpus action, sent a letter to this Court requesting assistance of counsel. 21 Doc. No. 16. The Court construes Petitioner’s letter as a Motion to Appoint Counsel. 22 The Sixth Amendment right to counsel does not extend to federal habeas corpus 23 actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Knaubert v. 24 Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible habeas 25 petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever 26 the court “determines that the interests of justice so require.’” 18 U.S.C. § 3006A(a)(2)(B); 27 Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 28 1228, 1234 (9th Cir. 1984). 1 The interests of justice require appointment of counsel when the court conducts an 2 evidentiary hearing on the petition. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 3 728; Rule 8(c), 28 U.S.C. foll. § 2254. The appointment of counsel is discretionary when 4 no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 5 728. At this point in the proceedings, there has been no request for an evidentiary hearing 6 or a determination that an evidentiary hearing is necessary and thus the decision whether 7 to appoint counsel is discretionary. 8 “In deciding whether to appoint counsel in a habeas proceeding, the district court 9 must evaluate the likelihood of success on the merits as well as the ability of the petitioner 10 to articulate his claims pro se in light of the complexity of the legal issues involved.” 11 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). In the Ninth Circuit, 12 “[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel 13 unless the circumstances of a particular case indicate that appointed counsel is necessary 14 to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 15 Knaubert, 791 F.2d at 728–29. However, “[t]he procedures employed by the federal courts 16 are highly protective of a pro se petitioner’s rights [and] [t]he district court is required to 17 construe a pro se petition more liberally than it would construe a petition drafted by 18 counsel.” Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) 19 (holding pro se complaint to less stringent standard) (per curiam)). 20 The Petition in this case was pleaded sufficiently to warrant this Court’s order 21 directing Respondent to file an Answer or other responsive pleading to the Petition.1 Thus, 22 Petitioner has sufficiently represented himself to date. Moreover, it is too early in the 23 proceedings for the Court to determine whether Petitioner has any likelihood of success on 24 the merits. 25

26 1 Although the Court initially informed Petitioner his Petitioner was subject to dismissal for failure to 27 allege exhaustion of state court remedies, Petitioner further demonstrated his ability to sufficiently 28 represent himself by subsequently filing “Exhibits in Support of Petition,” where he attached copies of 1 Accordingly, the Court finds the interests of justice do not warrant the appointment 2 counsel in this case at this time, and the Court DENIES Petitioner’s motion for 3 || appointment of counsel without prejudice. 4 IT IS SO ORDERED. 5 Dated: August 17, 2023 | Se 6 7 Hon. William V. Gallo United States Magistrate Judge

9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28