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Jose Miguel Rodriguez v. Raul Lopez; Edmund G. Brown

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 4, 2011

JOSE MIGUEL RODRIGUEZ,
PETITIONER,
v.
RAUL LOPEZ; EDMUND G. BROWN, JR.,
RESPONDENT.

The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL [ECF NO. 3]

Petitioner Jose Miguel Rodriguez, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus on December 22, 2010 [ECF Nos. 1, 5].*fn1 Rodriguez argues that the restitution fine imposed by the trial court violates the Eighth Amendment's prohibition against excessive fines, and constitutes an erroneous application of the sentencing guidelines. (See Pet. 6, 13-14, ECF No. 1.)

Petitioner filed this Request for Appointment of Counsel the same day [ECF No. 3].*fn2 In support of his request for attorney representation, Rodriguez asserts that he is incarcerated at California State Prison in Corcoran, California.*fn3 (Req. Appointment Counsel 1, ECF No. 3.) Also, he states that he is indigent and is unable to afford an attorney to represent him. (Id.) Rodriguez contends, "My total assets are $0 and my income is $0 per month." (Id.)

On January 6, 2011, this Court issued an Order Sua Sponte Substituting Respondent [ECF No. 7]. The Court ordered the Clerk of the Court to modify the docket to reflect "Matthew Cate, Secretary" as Respondent in place of "Raul Lopez" and "Edmund G. Brown, Jr." (Order 2, ECF No. 7.) Therefore, Matthew Cate is the only Respondent. (See id.)

The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Nonetheless, 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) (West Supp. 2010); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). Unless an evidentiary hearing is required, a court's decision of whether to appoint an attorney is discretionary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll. § 2254 (West Supp. 2010).

"Indigent 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 1196; Knaubert, 791 F.2d at 728-29. A due process violation may occur in the absence of counsel if the issues involved are too complex for the petitioner. In addition, 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). "To determine whether appointment of counsel is required for habeas petitioners with non-frivolous claims, a district court should consider the legal complexity of the case, the factual complexity of the case, the petitioner's ability to investigate and present his claim, and any other relevant factors." Abdullah, 18 F.3d at 573 (citing Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990); Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986)).

Because these factors are useful in determining whether due process requires court-appointed counsel, they are considered to the extent possible based on the record before the Court. Rodriguez has sufficiently represented himself to date. He has prepared and filed the following documents: a fifty-six page Petition [ECF No. 1], a declaration in support of a motion for leave to proceed in forma pauperis [ECF No. 2], this Request for Appointment of Counsel [ECF No. 3], and a notice of change of address [ECF No. 4]. Rodriguez included six exhibits with the Petition: (1) the state trial court reporter's transcripts, (2) the trial court's order denying Rodriguez's petitioner for writ of habeas corpus, (3) the appellate court's order denying Rodriguez's petition, (4) the state supreme court's order denying his petition, (5) the probation officer's report, and (6) a prison inmate statement report. (Pet. 17, ECF No. 1) Rodriguez filed all of these documents within a period that spanned one week, and there is no indication that anyone other than Petitioner drafted them. The Court's docket reflects that Rodriguez has adequately represented himself.

From the face of the Petition, filed pro se, it appears that Rodriguez has a good understanding of this case and the legal issues involved. The Petition contains a recitation of relevant facts with citations to the applicable exhibits. (See id. at 6, 12-13.) Rodriguez's Petition also includes legal argument and citations to case law and other supporting authority. (See id. at 6, 14-15.) The detail and clarity of the pleading is more than sufficient to competently present his claims. Petitioner has not identified any particular circumstances that would make the appointment of counsel necessary at this time. See Bashor, 730 F.2d at 1234 (denying request for appointed counsel where petitioner thoroughly presented the issues in his petition and memorandum of law).

Moreover, "[t]he procedures employed by the federal courts are highly protective of a pro se petitioner's rights. The district court is required to construe a pro se petition more liberally than it would construe a petition drafted by counsel." Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding pro se complaint to less stringent standard)). Rodriguez's Petition was pleaded sufficiently for this Court to direct Respondent to file an answer or other responsive pleading to the Petition [ECF No. 6]. The interests of justice do not require that Rodriguez receive attorney representation at this stage of the proceedings. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

"Where the issues involved can be properly resolved on the basis of the state court record, a district court does not abuse its discretion in denying a request for court-appointed counsel." Hoggard, 29 F.3d at 471 (citation omitted); McCann v. Armontrout, 973 F.2d 655, 661 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 409, 411 (9th Cir. 1986) (per curiam) (finding the district court did not abuse its discretion in denying the petitioner's request for appointment of counsel where the allegations were properly resolved on the state court record). Here, Rodriguez challenges the restitution fine imposed by the sentencing court and argues that it violates the Eighth Amendment's prohibition against excessive fines. (See Pet. 6, 13-14, ECF No. 1.) Specifically, he alleges that the trial court did not consider the mandatory factors of California Penal Code section 1202.4(c), such as Petitioner's future ability to pay, when imposing a restitution fine that exceeded the two hundred-dollar minimum. (Id. at 13.)

Rodriguez provided the Court with relevant documents and transcripts from the state court record. (See id. at 17.) It appears that the Court will be able to properly resolve the allegations in the Petition on the basis of the record. See Travis, 787 F.2d at 411.

Indeed, the assistance that counsel provides is valuable. "An attorney may narrow the issues and elicit relevant information from his or her client. An attorney may highlight the record and present to the court a reasoned analysis of the controlling law." Knaubert, 791 F.2d at 729. But as the Ninth Circuit in Knaubert noted, "[U]nless an evidentiary hearing is held, an attorney's skill in developing and presenting new evidence is largely superfluous; the district court is entitled to rely on the state court record alone." Id. (citing Sumner v. Mata, 449 U.S. 539, 545-57 (1981); 28 U.S.C. § 2254(d)). If a court denies a petitioner's request for appointment of counsel, the court will draw an independent legal conclusion after informing itself of the relevant law. See id. (citing Miller v. Fenton, 474 U.S. 104, 113 (1985)). "Therefore, the additional assistance provided by attorneys, while significant, is not compelling." Id.

If an evidentiary hearing is ordered, Rule 8(c) of the Rules Governing Section 2254 Cases requires that counsel be appointed to a petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B). Rule 8(c), 28 U.S.C. foll. § 2254; see Wood v. Wainwright, 597 F.2d 1054 (5th Cir. 1979). Additionally, courts may appoint counsel for the effective utilization of any discovery process. Rule 6(a), 28 U.S.C. foll. § 2254. "A habeas petitioner's interest in release from illegal confinement undoubtedly is high. However, consideration of remaining factors leads to the conclusion that due process does not require appointment of counsel when an evidentiary hearing is not held." Knaubert, 791 F.2d at 729.

Here, Rodriguez has requested an evidentiary hearing in his Petition. (Pet. 1, 14, ECF No. 1.) He argues that "[a]n evidentiary hearing would be useful in assessing [his] present financial status, as well as his ability to pay the restitution fines." (Id. at 14.) Nonetheless, this request has not been granted, and no evidentiary hearing is currently scheduled. Additionally, at this time, it does not appear that discovery will be necessary.

For the reasons stated above, the interests of justice do not compel court-appointed representation, and Petitioner's Request for Appointment of Counsel is DENIED without prejudice.

IT IS SO ORDERED.

cc: Judge Sabraw All parties K:\COMMON\BROOKS\CASES\HABEAS\RODRIGUEZ2651\Order re Appointment Counsel.wpd


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