United States District Court, S.D. California
ORDER: (1) DENYING WITHOUT PREJUDICE MOTION FOR
APPOINTMENT OF (2) REQUESTING ADDITIONAL INFORMATION FROM THE
Bernard G. Skomal U.S. Magistrate Judge.
27, 2016, Petitioner, a state prisoner proceeding pro se,
submitted a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254. [ECF No. 1.] Petitioner also filed a
request to proceed in forma pauperis, which the Court granted
on March 8, 2016. [ECF No. 6.] Presently before the Court is
Petitioner’s motion to appoint counsel. [ECF No. 34.]
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).
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) (West Supp. 2011); Terrovona v.
Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990);
Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.
present case, Petitioner states that he is “housed in
the state hospital (D&H) facility of the Department of
Mental Health being treated by psychiatrist for mental
illness.” [ECF No. 34 at 1.] Petitioner also states he:
“suffers from a severe mental
disability/disorder”... s on numerous anti-depressants
and anti-psychotic medication...suffering adverse
reactions... including confusion, abnormal thinking, abnormal
dreams, fatigue, dizziness and hallucinations... and is
unable to proceed alone.” Id. at 3.
Petitioner, therefore, requests appointment of counsel.
Id. at 4.
Allen v. Calderon, 408 F.3d 1150 (9th Cir. 2005),
the Ninth Circuit held that where a petitioner submits
“substantial evidence” of his incompetence, the
District Court should hold a competency hearing to determine
whether a petitioner is “competent under an appropriate
standard for habeas petitioners.” Allen, 408
F.3d at 1153-54. Although the Court did not specify what
constitutes “substantial evidence” of
incompetence or what the “appropriate standard”
is, it did give some guidance. In Allen, the
petitioner submitted his own sworn declaration and a
declaration from a fellow inmate which stated that Allen was
mentally impaired and did not understand the Court’s
orders. Id. at 1151. He also submitted a letter from
a prison psychiatrist which stated that Allen was in the
Enhanced Outpatient Program (“EOP”) at the
prison, had been “diagnosed with Chronic
Undifferentiated Schizophrenia and [was] taking two
psychotropic medications, ” and a second declaration in
support of a motion for appointment of counsel which stated
that he suffered from a “‘debilitating mental
illness that requires a course of treatment that includes the
use of various psychotropic medications’” and
that the mental illness combined with the medications
“‘severely [hinder] his ability to comprehend or
correctly respond to the determinations and Orders made by
the Court.’” Allen, 408 F.3d at 1151-52.
The Ninth Circuit concluded that this was sufficient to
require the District Court to make a determination as to
Allen’s competency by appointing counsel and conducting
a competency hearing. Allen, 408 F.3d at 1153-54.
information contained in Petitioner’s motion does not
rise to the level of “substantial evidence”
outlined in Allen. In particular, although
Petitioner indicated in his motion for appointment of counsel
that the Court should reference certain exhibits regarding
his mental health reports, list of medications and adverse
reaction information, there were no exhibits attached to the
motion. [ECF No. 34.] Nevertheless, because Petitioner has
made specific allegations of incompetency, and it is not
clear at this time that Petitioner can meet the
“substantial evidence” threshold enunciated in
Allen, the Court will allow additional time for
Petitioner to submit the omitted exhibits. Accordingly, it is
Petitioner shall file a document entitled “Additional
Evidence of Mental Illness” with accompanying
declarations, exhibits, and argument. The declarations,
exhibits, and argument should establish the following: (a)
Petitioner currently suffers from a mental illness,
and (b) that mental illness prevents him from being able to
understand and respond to Court orders. The additional
information may include declarations, signed under penalty of
perjury, from Petitioner, other inmates, medical personnel
who have treated Petitioner and current psychiatric records.
Petitioner’s filing is due no later than August 22,
Respondent shall file a response no later than September
12, 2016. The response shall include Respondent’s
independent investigation into Petitioner’s current
competence, as well as any legal argument and exhibits
Respondent wishes the Court to consider.
explained above, in light of the Court’s request for
additional information, it is premature to determine whether
counsel should be appointed to represent Petitioner in this
action. The motion for ...