United States District Court, S.D. California
ORDER DENYING PETITIONER'S MOTION FOR APPOINTMENT
OF COUNSEL [DOC. NO. 25] & RESETTING DEADLINE FOR
PETITIONER TO FILE TRAVERSE
HONORABLE JAN M. ADLER UNITED STATES MAGISTRATE JUDGE
has filed a motion for appointment of counsel that is
currently pending before the Court. [Doc. No. 25.] Petitioner
requests counsel be appointed for him because he cannot
afford to hire an attorney and he does “not know or
understand the process that is occurring.” [Doc. No.7,
p. 37 of 38; Doc. No. 25, p. 1 of 2.] He states, “I got
found incompetent to stand trial. I still am.” [Doc.
No. 25, p. 1 of 2.] Petitioner contends the Court should
conduct an evidentiary hearing regarding his mental
competency. [Id.] Petitioner does not submit a
declaration under penalty of perjury in support of his
motion, nor does he attach any documentation to support the
granting of the appointment.
April 11, 2017, the Court issued an order informing
Petitioner he had not made specific allegations or submitted
“substantial evidence” of incompetence, which is
required to warrant the Court conducting a competency
hearing. [Doc. No. 31, p. 2, applying Allen v.
Calderon, 408 F.3d 1150 (9th Cir. 2005)] Ordinarily
under these circumstances a motion for appointment of counsel
would be denied, but because Respondent had previously
informed the Court the Imperial County Superior Court
remanded Petitioner to Atascadero State Hospital in November
2016, for evaluation of his mental competence in connection
with sentencing proceedings, the Court informed Petitioner of
the shortcomings of his motion for appointment of counsel and
ordered he supplement the record. [Id., p. 3; See
also Doc. No. 17, Ex. A; Doc. No. 31.] Respondent was also
given a deadline to respond to Petitioner's supplemental
April 25, 2017 deadline to file his Additional Evidence of
Current Incompetence has since passed and no supplemental
filing from him has been received by the Court. Respondent,
however, has submitted briefing and a report by Atascadero
State Hospital regarding the evaluation of Petitioner's
mental health that was prepared at the direction of Imperial
County Superior Court. [Doc. No. 39 and 36.]
Sixth Amendment right to counsel does not extend to federal
habeas corpus actions by state prisoners. McClesky v.
Zant, 499 U.S. 467, 495 (1991); Chaney v.
Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert
denied, 481 U.S. 1023 (1987); Knaubert v.
Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986), cert.
denied, 479 U.S. 867 (1986). Under 18 U.S.C. §
3006A(a)(2)(B), however, financially eligible habeas
petitioners seeking relief pursuant to 28 U.S.C. § 2254
may obtain representation whenever a magistrate judge or the
district court “determines that the interests of
justice so require.” 18 U.S.C. § 3006A(a)(2),
(a)(2)(B); Terrovona v. Kincheloe, 912 F.2d 1176,
1181 (9th Cir. 1990), cert. denied, 499 U.S. 979
interests of justice can also require appointment of counsel
when the Court conducts an evidentiary hearing on the
Petition. 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. § 2254. Ninth Circuit precedent mandates that
when 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.
Here, despite having multiple opportunities to do so,
Petitioner has not submitted any evidence of his
incompetence. In fact, the only evidence of Petitioner's
mental competency are the records from Atascadero State
Hospital's evaluation of Petitioner's mental health.
The thirteen page Atascadero State Hospital report, which was
prepared on December 30, 2016, and accompanying Certification
of Mental Competency, which were filed with the Imperial
County Superior Court, document the 90 day evaluation of
Respondent and conclude he is competent to stand trial. [Doc.
No. 38.] Thus, there is no indication that an evidentiary
hearing is necessary.
appointment of counsel is discretionary when no evidentiary
hearing is necessary. Terrovona, 912 F.2d at 1177;
Knaubert, 791 F.2d at 728; Abdullah, 18
F.3d at 573. In the Ninth Circuit, “[i]ndigent 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. A due process violation may occur in the absence of
counsel if the issues involved are too complex for the
petitioner. Id. In addition, the appointment of
counsel may be necessary if the petitioner is of such limited
education as to be incapable of presenting his claims.
Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir.
1970). When the issues involved in a section 2254 habeas
action can be properly resolved on the basis of the state
court record, a district court does not abuse its discretion
in denying a motion for appointment of counsel. Travis v.
Lockhart, 787 F.2d 409, 411 (8th Cir. 1986).
instant case, Petitioner has sufficiently represented himself
to date. It appears he has a good grasp of this case and the
legal issues involved. The First Amended Petition was pled
sufficiently to warrant this Court's issuance of an Order
to Respond, which directed Respondent to file an Answer or
other responsive pleading. [Doc. No. 8.]
the issues raised in the First Amended Petition are not
complex. The First Amended Petition raises a single claim,
which was addressed by the California courts in the direct
appeal process. Respondent has provided the Court with the
state court records relevant to the determination of the
issues presented. [Doc. No. 16.] At this stage of the
proceedings, therefore, it appears the Court will be able to
properly resolve the issues presented on the basis of the
state court record. Under such circumstances, a district
court does not abuse its discretion in denying a state
prisoner's request for appointment of counsel because it
is simply not warranted by the interests of justice. See
LaMere v. Risley, 827 F.2d 622, (9th Cir. 1987).
on the foregoing, the Court finds that the interests of
justice do not require the appointment of counsel.
Petitioner's motion for appointment of counsel is,
Court previously indicated when it granted Petitioner's
motion for extension of time to file his Traverse, the
deadline for Petitioner to file his Traverse would be reset
by the Court after a determination was made regarding whether
a competency hearing should be held. As the Court has
concluded a competency hearing is not ...