Turner v. Foss

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA |} TYRONE T. TURNER, Case No.: 3:19-cv-1878-GPC-RBM 12 Petitioner, ORDER DENYING MOTION FOR || v. APPOINTMENT OF COUNSEL || TAMMY FOSS, Warden, 15 Respondent.| [Doe. 13] 16 .

17 I. INTRODUCTION 18 Petitioner Tyrone T. Turner (“Petitioner”), a prisoner proceeding pro per and in || forma pauperis, filed an Ex Parte Request for Appointment of Counsel which this Court ||accepted for filing nunc pro tunc to February 3, 2020. (Doc. 13.)'! Liberally construing || Petitioner’s filing, it is construed as a Motion for Appointment of Counsel (“Motion”).

23. || ———_______-_- 24 Petitioner is admonished to abide by the rules of this Court when filing. Petitioner’s filing contained || the following discrepancies: (1) lacking memorandum of points and authorities in support as a separate document; and (2) missing time and date on motion and/or supporting documentation. See CivLR 7.1; Potitioner’s Motion also requests the Court to issue an order compelling the California Department of || Corrections and Rehabilitation—specifically Salinas Valley State Prison—to issue Petitioner all of his personal property. (Doc. 13 at 1.) However, this request is outside the scope of a habeas corpus action.

Thus, the Court will not entertain the request.

1 || See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (courts liberally construe ||pro se litigants’ filings, relieving them from “strict application of procedural rules and ||demands ....”). Petitioner requests the Court to appoint counsel for his Petition for Writ 4 Habeas Corpus (“Petition”). (Docs. 1, 3, 13.) For the reasons discussed below, || Petitioner’s Motion is DENIED.

6 I. BACKGROUND 7 The Petition alleges on March 26, 1996, the San Diego County Superior Court || sentenced Petitioner to “life without parole plus eight and a half years.” (Doc. 1 at 1.) In || that case, Petitioner was convicted of first-degree murder while engaged in the commission || or attempted commission of robbery, attempted carjacking, and the use of a firearm. (Doc.

11 at 1.) The California Court of Appeal affirmed Petitioner’s judgment of conviction || with cert denied by the California Supreme Court. (Doc. 1 at 2.) The Superior Court, ||Court of Appeal, and California Supreme Court all denied Petitioner’s habeas petition.

14 ||(Doc. 1 at 3-4; Doc. 15 at Lodgmt. Nos. 2, 4, 6, 8, 10, 12.) On September 2, 2005, the U.S. || District Court for the Southern District of California denied Petitioner’s petition for writ of ||habeas corpus. (Doc. 1 at 5.)

17 On September 27, 2019, Petitioner filed the instant Petition in pro per. (Doc. 1.)

18 || Petitioner is proceeding in forma pauperis pursuant to the Court’s Order of October 10, |}2019. (Doc. 3.) The Petition seeks relief based on the Fourteenth Amendment Equal || Protection Clause of the United States. (Doc. 1 at 6; U.S. CONST. amend. XIV, § 1.) In ||response to the Petition, Tammy Foss (“Respondent”) filed a Motion to Dismiss for failure ||to state a claim on February 20, 2020. (Doc. 14.)

23 Wt. APPLICABLE LAW 24 The 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); e.g., Chaney v. || Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Financially eligible habeas petitioners seeking |\relief under 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); e.g., Terrovona v. || Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). The interests of justice require || appointment of counsel when the court conducts an evidentiary hearing on the petition or |} utilizes the discovery process. Terrovona, 912 F.2d at 1177; see also Rules 6(a) & 8(c), || Rules Governing § 2254 Cases (amend. Dec. 1, 2019). Otherwise, appointment of counsel 5 discretionary. See Terrovona, 912 F.2d at 1177.

6 Prisoners “applying for habeas relief are not entitled to appointed counsel unless the |icircumstances of [the] case [require appointment] to prevent due process violations.”

8 || Chaney, 801 F.2d at 1196 (citations omitted). Appointing counsel is within the court’s || discretion; in deciding appointment of counsel, the court “must evaluate the likelihood of ||success on the merits as well as the ability of the petitioner to articulate his claims pro se 11 light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, ||954 (9th Cir. 1983); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). In ||addition, appointment of counsel may be necessary if the petitioner has such limited || education that they are incapable of presenting their claims. Hawkins v. Bennett, 423 F.2d 15 |/948, 950 (8th Cir. 1970).

16 IV. DISCUSSION 17 Here, appointment of counsel is not warranted. First, the interests of justice do not |/require appointment of counsel. The record is adequately developed: no evidentiary ||hearing or use of the discovery process is warranted nor expected. As noted in Knaubert ||v. Goldsmith, “unless an evidentiary hearing is held, an attorney’s skill in developing and 21 presenting new evidence is largely superfluous; the district court [may] rely on the state ||court record alone.” 791 F.2d 722, 729 (9th Cir. 1986) (citation omitted). Presently, there 23 no indication an attorney would present additional compelling arguments or facts, so 24 appointment is unwarranted. See LaMere vy. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

25 In this instance, Petitioner’s due process rights are not violated in denying 26 appointment of counsel. Petitioner has not demonstrated an inability to present his claims.

27 ||Rather, Petitioner has sufficiently represented himself to date and appears to grasp the 28 issues and facts of his case. In fact, the Petition was pleaded sufficiently to warrant this ||Court’s Order directing Respondent to file an answer or other responsive pleading to the ||Petition. (Doc. 4.) Moreover, Petitioner has not asserted mental incapacity or extreme || complexity of legal issues. Petitioner’s Motion is limited to one conclusory statement: “the || appointment of counsel is necessary for Petitioner to properly prosecute his writ of habeas ||corpus.” (Doc. 13 at 2.) Such conclusory statement is insufficient.

6 As to financial eligibility, it is possible Petitioner is eligible. Petitioner has shown ||enough to proceed in forma pauperis and would likely be financially eligible should || appointment be warranted. (Doc. 2.) However, even liberally construing the Petition, the Court does not find appointment of counsel is warranted. See Knaubert, 791 F.2d at 729 10 (stating, “[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.”) (citations omitted).

13 Vv. CONCLUSION 14 For the foregoing reasons, Petitioner’s Motion is DENIED, without prejudice.

15 || DATE: March 13, 2020 7 —Banudas pails > 18 HON. RUTH BE EZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 25 .