-WVG McCoy v. Hedgpath, No. 3:2011cv00653 - Document 26 (S.D. Cal. 2011)
Court Description: ORDER Denying Motion For Appointment of Counsel re Doc. 24 MOTION filed by Kavin W McCoy. Petitioner filed Document 24 and stated therein for an Attorney to be appointed for him, the Court construes the document to be a motion for appointment of counsel. For the reasons stated within this Order, the "interests of justice" in this matter do not compel the appointment of counsel. Accordingly, Petitioner's Request for Appointment of Counsel is denied without prejudice. Signed by Magistrate Judge William V. Gallo on 6/6/2011.(All non-registered users served via U.S. Mail Service)(leh)
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-WVG McCoy v. Hedgpath Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KAVIN W. MCCOY, 12 Petitioner, 13 v. 14 ANTHONY HEDGPETH, 15 Respondent. ) ) ) ) ) ) ) ) ) ) Civil No. 11-0653-MMA(WVG) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (DOC. # 24) 16 17 On May 27, 2011, Petitioner filed a document entitled “In re 18 3:11-cv-00653-MMA-WVG and Discrepancies in Documents in Documents # 19 14 #16.” (Doc. #24) In that document, Petitioner requests that an 20 attorney be appointed for him. Therefore, the Court construes the 21 document to be a Motion for Appointment of Counsel. 22 The Sixth Amendment right to counsel does not extend to 23 federal habeas corpus actions by state prisoners. 24 Zant, 499 U.S. 467, 495 (1991); 25 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th 26 Cir. 1986). However, financially eligible habeas petitioners seeking 27 relief pursuant to 28 U.S.C. § 2254 may obtain representation 28 whenever the court “determines that the interests of justice so McCleskey v. Chaney v. Lewis, 801 F.2d 1191, 1 11CV0653 Dockets.Justia.com 1 require.’” 2 v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 3 730 F.2d 1228, 1234 (9th Cir. 1984); Hoggard v. Purkett, 29 F.3d 4 469, 471 (8th Cir. 1994). 5 18 U.S.C. § 3006A(a)(2)(B) (West Supp. 1995); Terrovona The interests of justice require appointment of counsel when 6 the 7 Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah v. 8 Norris, 18 F.3d 571, 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll. 9 § court 2254. conducts an evidentiary hearing on the petition. The appointment of counsel is discretionary when no 10 evidentiary hearing is necessary. 11 Knaubert, 791 F.2d at 728; Abdullah, 18 F.3d at 573. Terrovona, 912 F.2d at 1177; 12 In the Ninth Circuit, “[i]ndigent state prisoners applying 13 for habeas relief are not entitled to appointed counsel unless the 14 circumstances of a particular case indicate that appointed counsel 15 is necessary to prevent due process violations.” 16 at 1196; Knaubert, 791 F.2d at 728-29. 17 occur in the absence of counsel if the issues involved are too 18 complex for the petitioner. In addition, the appointment of counsel 19 may be necessary if the petitioner has such limited education that 20 he or she is incapable of presenting his or her claims. 21 Bennett, 423 F.2d 948, 950 (8th Cir. 1970). 22 Chaney, 801 F.2d A due process violation may Hawkins v. In the Eighth Circuit, “[t]o determine whether appointment of 23 counsel 24 claims, a district court should consider the legal complexity of the 25 case, the factual complexity of the case, the petitioner’s ability 26 to investigate and present his claim, and any other relevant 27 factors.” 28 Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)); Hoggard, 29 F.3d at is required for habeas petitioners with non-frivolous Abdullah v. Norris, 18 F.3d at 573 (citing Battle v. 2 11CV0653 1 471; Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993); Smith v. 2 Groose, 998 F.2d 1439, 1442 (8th Cir. 1993); Johnson v. Williams, 3 788 F.2d 1319, 1322-23 (8th Cir. 1986). 4 Since these factors are useful in determining whether due 5 process requires the appointment of counsel, they are considered to 6 the extent possible based on the record before the Court. Here, 7 Petitioner has sufficiently represented himself to date. From the 8 face of the Petition, filed pro se, it appears that Petitioner has 9 a good grasp of this case and the legal issues involved. Under such 10 circumstances, a district court does not abuse its discretion in 11 denying a state prisoner’s request for appointment of counsel as it 12 is simply not warranted by the interests of justice. 13 Risley, 827 F.2d 622, 626 (9th Cir. 1987). At this stage of the 14 proceedings, the Court finds that the interests of justice do not 15 require the appointment of counsel. Therefore, Petitioner’s Motion 16 for 17 prejudice. Appointment of Counsel in this regard is See LaMere v. DENIED without 18 Also, Petitioner seeks counsel because he states that he 19 needs an expert to use forensic laboratory reports pertaining to his 20 case. However, Petitioner has not shown that such appointment is 21 necessary. The in forma pauperis statute, 28 U.S.C. § 1915, does not 22 waive the requirement of the payment of fees or expenses for 23 witnesses.1/ Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). 24 Further, the appointment of an independent expert witness under 25 Federal Rule of Evidence 706 is discretionary. 26 American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 See Walker v. 27 28 1/ On April 21, 2011, Petitioner’s Motion to Proceed in forma pauperis was granted. 3 11CV0653 1 (9th 2 contemplate the appointment of, and compensation for, an expert to 3 aid one of the parties.” Trimble v. City of Phoenix Police Dept., 4 2006 WL 778697, *2 (D. Ariz. 2006). Appointment of an expert witness 5 may generally be appropriate when “scientific, technical, or other 6 specialized knowledge will assist the trier of fact to understand 7 the evidence or decide a fact in issue...” Levi v. Director of 8 Corrections, 2006 WL 845733, *1 (E.D. Cal. 2006) [citing Ledford v. 9 Sullivan, Cir. 1999). 105 “Reasonably F.3d 354, construed, 358-59 (7th [Rule Cir. 706] 1997)]. does not Therefore, 10 Petitioner’s Motion for Appointment of Counsel in this regard is 11 DENIED without prejudice. 12 The Court also notes that “[w]here the issues involved can be 13 properly resolved on the basis of the state court record, a district 14 court does not abuse its discretion in denying a request for court- 15 appointed counsel.” 16 973 F.2d 655, 661 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 409, 17 411 (8th Cir. 1986) (per curiam) (holding that district court did 18 not abuse its discretion in denying § 2254 habeas petitioner’s 19 motion for appointment of counsel where allegations were properly 20 resolved on basis of state court record). 21 proceedings, it appears the Court will be able to properly resolve 22 the issues involved on the basis of the state court record. 23 Hoggard, 29 F.3d at 471; McCann v. Armontrout, At this stage of the “The procedures employed by the federal courts are highly 24 protective of a pro se petitioner’s rights. 25 required to construe a pro se petition more liberally than it would 26 construe a petition drafted by counsel.” 27 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se 28 complaint to less stringent standard) (per curiam)); Bashor, 730 4 The district court is Knaubert, 791 F.2d at 729 11CV0653 1 F.2d at 1234. The Petition in this case was pleaded sufficiently to 2 warrant this Court’s order directing Respondent to file an answer or 3 other responsive pleading to the Petition. 4 “The district court must scrutinize the state court record 5 independently to determine whether the state court procedures and 6 findings were sufficient.” 7 Ricketts, 774 F.2d 957, 961 (9th Cir.1985); Rhinehart v. Gunn, 598 8 F.2d 557, 558 (9th Cir.1979) (per 9 F.2d 111, 112 (9th Cir.1978) (per curiam). Knaubert, 791 F.2d at 729; Richmond v. curiam); Turner v. Chavez, 586 Even when the district 10 court accepts a state court’s factual findings, it must render an 11 independent legal conclusion regarding the legality of a peti- 12 tioner’s incarceration. 13 (1985). 14 receive de novo appellate review. 15 1434, 1436 (9th Cir. 1986). 16 Miller v. Fenton, 474 U.S. 104, 112 The district court’s legal conclusion, moreover, will Hayes v. Kincheloe, 784 F.2d The assistance counsel provides is valuable. “An attorney 17 may narrow the issues and elicit relevant information from his or 18 her client. An attorney may highlight the record and present to the 19 court a reasoned analysis of the controlling law.” 20 F.2d at 729. 21 evidentiary hearing is held, an attorney’s skill in developing and 22 presenting new evidence is largely superfluous; the district court 23 is entitled to rely on the state court record alone.” 24 Sumner U.S. 25 § 2254(d)). 26 appointment of counsel, it must “review the record and render an 27 independent legal conclusion.” 28 does not appoint counsel, it must “inform itself of the relevant v. Knaubert, 791 However, as the court in Knaubert noted: “unless an Mata, 449 539, 545-57 (1981), and Id. (citing 28 U.S.C. Because this Court denies Petitioner’s motion for Id. 5 Moreover, because the Court 11CV0653 1 law. 2 while significant, is not compelling.” Therefore, the additional assistance provided by attorneys, Id. 3 If an evidentiary hearing is required, Rule 8(c) of the Rules 4 Governing Section 2254 Cases requires that counsel be appointed to 5 a petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B). 6 8(c), 28 U.S.C. foll. § 2254; see Wood v. Wainwright, 597 F.2d 1054 7 (5th Cir. 1979). In addition, the Court may appoint counsel for the 8 effective utilization of any discovery process. Rule 6(a), 28 U.S.C. 9 foll. § 2254. For the above-stated reasons, the “interests of 10 justice” in this matter do not compel the appointment of counsel. 11 Accordingly, Petitioner’s Motion for Appointment of Counsel is 12 DENIED without prejudice. 13 IT IS SO ORDERED. 14 15 DATED: June 6, 2011 16 17 Hon. William V. Gallo U.S. Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 6 11CV0653 Rule
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