UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 10, 2011
JILBRAUN DANDTON AGNEW,
MATTHEW CATE, ET AL.,
The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 11]
Petitioner Jilbraun Dandton Agnew, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus on April 11, 2011 [ECF Nos. 1, 3].*fn1 Agnew argues that during his jury trial, the prosecutor improperly questioned witnesses about evidence that the trial judge had previously ruled was inadmissible. (See Pet. 6-9, ECF No. 1.) On July 27, 2011, Respondent Matthew Cate*fn2 filed an Answer to Petition for Writ of Habeas Corpus [ECF No. 12]. The parties consented to magistrate judge jurisdiction; consequently, Judge Moskowitz referred the case to this Court [ECF Nos. 9, 13].
This Motion for Appointment of Counsel was filed nunc pro tunc to July 26, 2011 [ECF No. 11]. In support of his request, Petitioner asserts that the issues in this action are particularly complex. (Mot. Appointment Counsel 1, ECF No. 11.) According to Agnew, the complex issues include prosecutorial misconduct, the admission of evidence that was previously deemed inadmissible, and the trial court's error in allowing the prosecutor to ask questions about other instances of Agnew's alleged misconduct. (Id.) Petitioner also maintains that due to the length of his sentence, the interests of justice require an appointed attorney. (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.A. § 3006A(a)(2)(B) (West Supp. 2011); Terrovona v. Kincheloe, 912 F.2d 1176, 1181-82 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); see Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). The interests of justice require an appointed lawyer when the court conducts an evidentiary hearing on the petition. Rule 8(c), 28 U.S.C. foll. § 2254; Terrovona, 912 F.2d at 1181; Knaubert, 791 F.2d at 728; see Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994). Otherwise, whether to appoint an attorney is entirely within the discretion of the district court. Knaubert, 791 F.2d at 728.
"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; see Knaubert, 791 F.2d at 728-29. A due process violation may occur if the issues involved are too complex for the petitioner to handle without the assistance of an attorney. In addition, the appointment of counsel may be necessary if the petitioner has limited education and is incapable of presenting the claims in the petition. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). "[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.
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 this Court. Agnew argues, "Counsel should be appointed because the issues in this case are particularly complex." (Mot. Appointment Counsel 1, ECF No. 11.) He continues, "The issues include: Prosecutor misconduct, admitting inadmissible evidence that was ruled during [in] limine motion[,] court error allowing the prosecutor to infect trial with uncharged misconduct." (Id.) Despite this contention, Agnew has sufficiently represented himself to date. The Petitioner has prepared and filed a sixteen-page Petition for Writ of Habeas Corpus with thirty-three pages of exhibits [ECF No. 1], a motion to proceed in forma pauperis [ECF No. 2], and this Motion for Appointment of counsel [ECF No. 11]. Agnew filed these documents within a period that spanned less than four months, and there is no indication that anyone other than Petitioner drafted them. He has adequately represented himself. Agnew's Petition was pleaded sufficiently for this Court to direct Respondent to file an answer or other responsive pleading to the Petition [ECF No. 4].
From the face of the Petition, it appears that Petitioner has a good understanding of this case and the legal issues involved. (See Pet. 6-9, ECF No. 1.) The Petition contains a recitation of relevant facts as well as legal arguments with citations to case law and other supporting authority. (See id.) Based on the detail and clarity of the Petition, Agnew has competently presented his claims. He has not pointed to 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; see Bashor, 730 F.2d at 1234. At this stage of the proceedings, the interests of justice do not require that Agnew receive attorney representation.
"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; McCann v. Armontrout, 973 F.2d 655, 661 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 409, 411 (9th Cir. 1986) (per curiam). Here, Agnew alleges that the prosecutor committed prejudicial misconduct during the jury trial by asking witnesses questions about whether Petitioner had punched a woman in an unrelated incident, which was evidence that the trial judge had previously ruled was inadmissible. (Pet. 6-9, ECF No. 1.) The Petitioner also asserts that the trial court erred in allowing the prosecutor to ask witnesses questions about Agnew's other alleged misconduct. (Id. at 6.) The Court has been provided with all relevant documents and transcripts to properly resolve the allegations in the Petition on the basis of the record. (See Answer Attach. #1 Notice Lodgment 1-2, ECF No. 12); Hoggard, 29 F.3d at 471; McCann, 973 F.2d at 661; Travis, 787 F.2d at 411. Additionally, Agnew maintains that the interests of justice require appointed representation "[d]ue to the length of Petitioner's sentence," which is thirty-eight years to life. (Mot. Appointment Counsel 1, ECF No. 11; see Pet. 1, ECF No. 1.) "A habeas petitioner's interest in release from illegal confinement undoubtedly is high. However, . . . due process does not require appointment of counsel when an evidentiary hearing is not held." Knaubert, 791 F.2d at 729. Further, in habeas corpus actions, counsel is typically only appointed in (1) capital cases, (2) cases that turn on complex procedural or mixed legal and factual issues, (3) actions litigated by petitioners who are mentally or physically impaired, (4) matters that will likely require experts, (5) actions involving petitioners who are unable to investigate crucial facts, and (6) factually complex cases. Salango v. Sisto, No. CIV S-09- 0044-TJB, 2011 U.S. Dist. LEXIS 13071, at *7-8 (E.D. Cal. Feb. 7, 2011). Thus, Agnew's prison term of thirty-eight years to life is not central to whether appointed counsel is necessary to prevent due process violations. See id.; see also Chaney, 801 F.2d at 1196.
Indeed, the assistance that counsel provides a petitioner 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. Even so, "[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. Id. "Therefore, the additional assistance provided by attorneys, while significant, is not compelling." Id.
When a pro se petitioner presents a claim that the state court made an unreasonable determination of the facts, the court may exercise its discretion to hold an evidentiary hearing. Id. at n.6. In that circumstance, counsel must be appointed to a petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B). Id.; see Rule 8(c), 28 U.S.C.A. foll. § 2254; Wood v. Wainwright, 597 F.2d 1054 (5th Cir. 1979). The Court may also appoint counsel for the effective utilization of any discovery process. Rule 6(a), 28 U.S.C.A. foll. § 2254. An evidentiary hearing has not been ordered in this case, and at this time, it does not appear that discovery will be necessary.
For the reasons stated above, the interests of justice do not compel the appointment of counsel to represent Agnew at this stage of the case. Petitioner's Motion for Appointment of Counsel is DENIED without prejudice.
IT IS SO ORDERED.
cc: All parties
K:\COMMON\BROOKS\CASES\HABEAS\AGNEW757\Order re Appointment of Counsel.wpd