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Michael Wu v. Kathleen Dickinson

March 9, 2011



Petitioner, a state prisoner proceeding in forma pauperis, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. Currently before the court are various motions filed by petitioner pro se, a motion by petitioner's appointed counsel to withdraw, and the amended petition itself for screening under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts. Dckt. Nos. 39, 51-54. For the reasons provided below, the court will grant counsel's request to withdraw, deny petitioner's request for new counsel, dismiss the petition without leave to amend, and deny the remaining pending pro se motions as moot.

I. Procedural Background

In the initial screening order dated June 30, 2010, the court dismissed the petition with leave to amend. Dckt. No. 29. As of that date, petitioner had filed no less than 10 lengthy, disorganized, rambling, and inscrutable pleadings. Dckt. Nos. 1 (Pet. -- 192 pages), 8 (Am. Pet. -- 227 pages), 9 (Supplement -- 45 pages), 11 (Supplement -- 51 pages), 13 (Supplement -- 28 pages), 14 (Supplement -- 29 pages), 17 (Supplement -- 100 pages), 19 (Supplement -- 34 pages), 24 (Supplement -- 60 pages), 25 (Supplement -- 45 pages), 27 (Supplement -- 98 pages). The court stated that "[t]he petition in this action is so rambling and incomprehensible that the court cannot reasonably discharge its [screening] responsibility." Dckt. No. 29 at 2. The court dismissed the petition, but granted petitioner leave to file an amended petition "that clearly and simply sets out petitioner's claims and supporting facts." Id. at 3.

Petitioner filed an amended petition on September 21, 2010 and additional amended petitions on September 23, 2010 and November 17, 2010, among other submissions. Dckt. Nos. 36, 37, 39. These amended petitions suffer from the same defects that the court ordered petitioner to cure in the initial screening order.

In the meantime, the court appointed counsel for petitioner, first appointing the Federal Public Defender and, upon notice that the Federal Public Defender could not represent petitioner, appointing Marilou Hillberg. Dckt. Nos. 41, 47. Despite having been appointed counsel, petitioner continues to file motions pro se in this court. Dckt. Nos. 48, 51-53. On February 28, 2011 petitioner filed a request that the court appoint him a different lawyer. Dckt. No. 53. On March 3, 2011, Ms. Hillberg filed a motion to withdraw as petitioner's counsel. Dckt. No. 54.

Ms. Hillberg has informed the court that petitioner filed a habeas petition in 2006 in the Northern District of California raising "essentially the same or similar claims". Dckt. No. 54 at 5; Wu v. Hubbard, No. C 06-3263 VRW (PR) (N.D. Cal.). Judge Vaughn Walker dismissed that case without prejudice after affording petitioner an opportunity to amend, finding that it was "virtually impossible to ascertain from petitioner's voluminous filings what claims he seeks to bring in federal court." Wu, No. C 06-3263 VRW (PR), Order of December 18, 2007, Dckt. No. 21 at 2-3.

I. Counsel's Motion to Withdraw

Ms. Hillberg asks to withdraw from the case because: (1) her review of the record and investigation have revealed no claims cognizable in this federal habeas action; (2) she believes that petitioner's transfer to Atascadero State Hospital has deprived this court of jurisdiction over the petition; and (3) petitioner has asked for a new lawyer.

Counsel has provided the court with a detailed declaration describing her work on the case and her assessment of petitioner's claims, as much as those claims can be discerned. Dckt. No. 54 at 2-7. She declares: "Communication with Mr. Wu has proven problematic. Mr. Wu has sent me hundreds of pages of correspondence and I have read them all. Although Mr. Wu's writing is difficult to decipher, counsel has extensive training, education and experience with clients with cognitive or neurological difficulties and did her best to comprehend the basis of his claims. Telephone conversations with Mr. Wu proved problematic; after several telephone conversations, I do not feel there was any meaningful communication between us. Although I sent him four letters, the last one a lengthy discussion of the legal issues with attached copies of relevant documents, I do not believe he understood it." Id. at 3.

For his part, petitioner states that Ms. Hillberg suffers from a "mental disorder" and "not only change to a new way of nonstopping broadcasting of her nonsense, from the professional way of interactive communication during phone call, she also became my ex-wife's lawyer of conflict of interest to prove wife's vagina was cut bleeding with her own finger nails as same as this boring lawyer Marylou did by herself . . ."*fn1 Dckt. No. 53 at 1.

The filings by petitioner and Ms. Hillberg provide sufficient cause for withdrawal. See E.D. Cal. L.R. 83-182(d) (providing that withdrawal by counsel in this court is governed by the California Rules of Professional Conduct); Cal. R. Prof. Conduct 3-700. Ms. Hillberg declares that petitioner's claims are not cognizable. See Cal. R. Prof. Conduct 3-700(C)(1)(a) (permitting withdrawal where the client "insists upon presenting a claim . . . that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law"). Further, petitioner and Ms. Hillberg have not been able to communicate effectively, and petitioner seems to believe that Ms. Hillberg has a mental disorder and is conspiring with his victim. See id. 3-700(C)(1)(d) (permitting withdrawal where the client "renders it unreasonably difficult for the member to carry out the employment effectively"). Finally, petitioner himself seeks to terminate the representation. See id. 3-700(C)(5) (permitting withdrawal where "[t]he client knowingly and freely assents to termination of the employment"). Accordingly, counsel's request to withdraw (Docket No. 54) will be granted.

Petitioner seeks appointment of a new lawyer. Dckt. No. 53 at 3. However, the court has no reason to believe that a new lawyer would be able to effectively communicate with petitioner or otherwise assist in this action. Further, the court has reviewed the pleadings filed by petitioner and concludes, for the reasons provided in the next section, that the petition must be dismissed under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing § 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings. Accordingly, the court will decline to appoint new counsel for petitioner.

II. Screening

A habeas petition is appropriately filed by "a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. A petition must be dismissed if, on initial review, the ...

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