IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 11, 2010
ORLANDO DELATORRE, PETITIONER,
BRIAN HAWS, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this habeas corpus action filed pursuant to 28 U.S.C. § 2254.*fn1 On February 24, 2010, this court granted petitioner's application to proceed in forma pauperis and directed the respondent to file a response within sixty days. (Dkt. No. 8.) Petitioner now requests appointment of counsel. (Dkt. No. 11.)
In response to petitioner's inquiry, appointment of counsel is not accorded in tandem with the court's approval of an in forma pauperis application. "In proceedings in forma pauperis, the district court 'may request an attorney to represent any person unable to afford counsel.' 28 U.S.C. § 1915(e)(1). The decision to appoint such counsel is within 'the sound discretion of the trial court and is granted only in exceptional circumstances.' Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims 'in light of the complexity of the legal issues involved.' Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983))." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). "Neither of these factors is dispositive and both must be viewed together before reaching a decision on request of counsel under section 1915(d)." Wilborn, supra, 789 F.2d at 1331 (fn. omitted); see also, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
Nor does there exist an absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, a district court may appoint counsel for a financially eligible person seeking relief pursuant to 28 U.S.C. § 2254 where "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). "Indigent state prisoners applying for habeas corpus 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 v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted).
In the present case, the court finds neither exceptional circumstances nor that the interests of justice would be served by appointment of counsel at the present time. Plaintiff has demonstrated sufficient capacity to articulate his claims and the issues do not presently indicate substantial complexity.
Accordingly, IT IS HEREBY ORDERED that petitioner's March 9, 2010 motion for appointment of counsel (Dkt. No. 11) is denied without prejudice.