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Singleton v. Clark


October 17, 2009


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


[Dkt. Nos. 6, 11, 15]

I. Introduction

Petitioner, a prisoner in state custody, brought a petition for writ of habeas corpus (the "Petition") in this Court pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) and (d), the Petition was referred to Magistrate Judge Cathy Ann Bencivengo for a report and recommendation.

Respondent moved to dismiss the Petition on the grounds it is untimely. Petitioner filed no responsive pleading. On June 4, 2009 Judge Bencivengo issued her report and recommendation (the "R&R"), which recommended that Respondent's motion to dismiss be granted. Again, Petitioner filed no responsive pleading. Petitioner has, however, twice filed a request for the appointment of counsel, one of which is still pending.

II. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Because Petitioner is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). That said, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

III. Petitioner's Request for Counsel

Petitioner has twice asked that counsel be appointed to assist him with the Petition. His first request came on May 28, 2009, in a letter to the Clerk of the Court. Petitioner represented he was blind and paraplegic, and unable to read, write, and even understand his case.

Judge Bencivengo denied that request, without prejudice, shortly before issuing the R&R. She noted that Petitioner presented no evidence of his disabilities, appeared able enough to articulate his claims and organize his filings, and faced a motion to dismiss his Petition as untimely anyway.

The Court rejected as improper filings two subsequent requests for counsel filed by Petitioner on July 10, 2009, a little over one month after Judge Bencivengo denied his initial request. On October 8, 2009, Plaintiff again filed a motion for the appointment of counsel, which the Court accepted. In this motion, which appears meager compared to those rejected by the Court in July, Petitioner merely declares in typed text that he cannot afford counsel, and in handwritten text "I'm blind and in a wheel. also." The Court can discern from one of the rejected motions that Petitioner purported to have medical exhibits, but he did not submit those with his motion for the appointment of counsel that the Court ultimately accepted.

The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the Court "determines that the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). In the Ninth Circuit specifically, "[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney, 801 F.2d at 1996. The appointment of counsel may be necessary if the petitioner has such limited education that he or she is incapable of presenting his or her claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970).

When Judge Bencivengo denied Petitioner's first request for counsel, she noted he "has filed pro se habeas petitions in all three state courts, as well as his pro se initiation of the present action in this Court, and his filings are fairly organized and present the issues and arguments with adequate clarity and efficiency." While all Petitioner has filed in this case is the Petition, a motion to proceed in forma pauperis, and two requests for counsel, the Court sees no evidence that Petitioner is unable to present and articulate his claims. While Petitioner alleges he is blind, no doubt a serious impairment, he provides no evidence. The Court is already obliged to construe Petitioner's claims liberally, Knaubert v. Goldsmith, 791 F.2d 722, 729 (9th Cir. 1986), and the fact that Petitioner first requested counsel almost three months after he filed his Petition, and after Respondent moved to dismiss it, lead the Court to further doubt that the appointment of counsel is appropriate in this case.

Petitioner's motion for the appointment of counsel is DENIED.

IV. Timeliness of Petition

The R&R recommends that Respondent's motion to dismiss the Petition be granted because it is untimely. Petitioner filed no objection to the R&R, and the Court, having reviewed the R&R, finds that it thoroughly considered the timeliness of the Petition and correctly concluded it was untimely.

Pursuant to 28 U.S.C. § 2244(d)(1), "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." The limitation runs, in this case, from the date on which the judgment became final, which the R&R explains was November 7, 2005. Petitioner did not file the Petition, however, until March 2, 2009, which is 3 years and almost 4 months after his judgment became final -- and 2 years and almost 4 months past the deadline set by § 2244(d)(1)).

Petitioner did file a state habeas petition on March 7, 2007, which would typically entitle him to statutory tolling (at least while it is pending), but by this time the period of limitation on his federal habeas petition had already expired. Unfortunately, "section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed." Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

Equitable tolling of a limitation period is appropriate when there are "extraordinary circumstances beyond the prisoner's control that made it impossible to file a petition on time," Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Petitioner has asserted no basis for equitable tolling, nor does the Court see one.

Respondent's motion to dismiss the Petition is GRANTED, and the Petition is dismissed with prejudice for violating the limitation period of 28 U.S.C. § 2244(d).

V. Conclusion

Petitioner's request for counsel is DENIED, and the Court ADOPTS the R&R. Respondent's motion to dismiss the Petition is GRANTED, and the Petition is dismissed with prejudice on the grounds it is untimely.



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