Penrose v. Holbrook

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 BRENNAN P. PENROSE, CASE NO. 3:19-cv-06083-BHS-JRC 11 Petitioner, ORDER 12 v. 13 STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS, Respondent.

16 Before the Court are three motions filed by petitioner: petitioner’s motion to appoint counsel (Dkt. 13) and two motions for a judicial order (Dkts. 14, 22). The Court denies all three motions (Dkts. 13, 14, 22). Petitioner has failed to demonstrate that exceptional circumstances warrant the appointment of counsel at this time and the documents petitioner seeks to obtain may be included in the state court record filed by respondent.

21 A. Motion to Appoint Counsel (Dkt. 13) 22 Petitioner moves for the appointment of counsel. Dkt. 13. However, there is no constitutional right to appointment of counsel in habeas petitions because they are civil, not criminal, in nature. See Terrovona v. Kincheloe, 912 F.3d 1176, 1181 (9th Cir. 1990). And although the Court must appoint counsel if an evidentiary hearing is warranted, Rule 8(c) of the Rules Governing Section 2254 Cases, petitioner has not established good cause for such a hearing in this case.

5 The Court may request an attorney to represent indigent civil litigants under 28 U.S.C. § 6 1915(e)(1) but should do so only under “exceptional circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.”

10 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). These factors must be viewed together before reaching a decision on a request for counsel under § 1915(e)(1). Id. 12 Here, petitioner alleges his incarceration limits his ability to litigate this matter. Dkt. 13.

13 However, petitioner has failed to establish that exceptional circumstances warrant the appointment of counsel at this time. Moreover, petitioner does not demonstrate that he is likely to succeed on the merits of his habeas petitions. Likewise, petitioner has made numerous arguments to the Court that suggest he is able to articulate his claims pro se. See Dkt. 12.

17 Accordingly, petitioner’s motion to appoint counsel (Dkt. 13) is denied without prejudice.

18 B. Motions for Judicial Order (Dkts. 14, 22) 19 Petitioner requests the Court enter a judicial ruling ordering the Department of Corrections (“DOC”) provide and send materials necessary for his habeas petition including “violation documents/confinement orders,” petitioner’s central file, and rulings related to petitioner’s sentences. Dkts. 14, 22. Petitioner alleges he is being denied access to his documents, and he previously requested the documents through public disclosure. Id. 1 The basis for petitioner’s motion is not entirely clear, but it appears the documents petitioner seeks to obtain may be included in the state court record filed by respondent. Pursuant to Rule 5 of the Rules Governing Section 2254 and 2255 Cases, respondent must attach to the answer including, parts of the transcript respondent considers relevant, including any brief submitted by petitioner or the prosecution in an appellate court contesting the conviction or sentence, and opinions and dispositive orders of the appellate court relating to the conviction or sentence. The time for respondent to file his answer has not yet passed. See Dkt. 16. Therefore, the Court denies petitioner’s motions for judicial order (Dkts. 14, 22) as premature without prejudice. If petitioner seeks additional documents related to his sentence after the answer and state court record have been filed by respondent, he may renew his motion at that time.

11 Dated this 3rd day of February, 2020.

A J. Richard Creatura United States Magistrate Judge