Denton v. Haynes

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 MICHAEL DENTON, CASE NO. 3:20-cv-05066-BHS-JRC 11 Petitioner, ORDER ON MOTION TO 12 v. APPOINT COUNSEL AND MOTION TO ORDER RESPONSE 13 DONALD R. HOLBROOK, 14 Respondent.

16 This matter is before the Court on petitioner’s motions to appoint counsel and to require the Pierce County Prosecutor to respond. See Dkts. 18, 20. For the reasons discussed herein, both motions are denied.

19 BACKGROUND 20 Petitioner, who proceeds pro se and in forma pauperis, brings a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. 5. He seeks relief from a 120-month sentence entered pursuant to a Pierce County Superior Court judgment and sentence. See Dkt. 5, at 1.

23 Petitioner lists three grounds for relief: violation of his right to have a jury determine an aggravating sentencing factor, violation of his right to present a diminished capacity defense at trial, and that he is being subjected to allegedly unconstitutional conditions of confinement. See generally Dkt. 5. Upon preliminary screening, the Court dismissed the conditions of confinement claim and directed service of the first and second grounds for relief on the superintendent of the prison where petitioner was housed and the Washington State Attorney General. See Dkts. 14, 23.

7 Respondent has since filed an answer, and the habeas corpus petition will be ripe for the Court’s decision on July 17, 2020. See Dkt. 24.

9 MOTION FOR COUNSEL 10 There is no right to have counsel appointed in cases brought under 28 U.S.C. § 2254, unless an evidentiary hearing is required or such appointment is “necessary for the effective utilization of discovery procedures.” See McCleskey v. Zant, 499 U.S. 467, 495 (1991); United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995); United States v. Angelone, 894 14 F.2d 1129, 1130 (9th Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983); Rules Governing Section 2254 Cases in the United States District Courts 6(a) and 8(c). In this matter, the Court has not determined that an evidentiary hearing is required or directed any discovery.

17 The Court may also request an attorney to represent indigent civil litigants under 28 18 U.S.C. § 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.” 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. 1 Here, petitioner requests the appointment of counsel on the basis that (1) he is being held in solitary confinement without access to his “legal box,” (2) he suffers from “PTSD, borderline antisocial personality disorder, and SHO Syndrome” that cause him to often be placed in solitary confinement, and (3) he is unable to conduct discovery. Dkt. 18. Regarding petitioner’s first two arguments, the Court does not find that petitioner’s circumstances prevent him from litigating this matter. To date, petitioner has filed multiple motions seeking relief, including objections challenging findings with which he disagrees. See Dkts. 6, 10, 17, 18, 20. Since his transfer to Stafford Creek Corrections Center, he has timely objected to a report and recommendation (Dkt. 17) and a reply in support of his motion for counsel. See Dkt. 22.

10 Notably, petitioner’s reply in support of his request for counsel includes multiple citations to authority in support of his arguments. Dkt. 22, at 4. Thus it does not appear to the Court that petitioner’s circumstances prevent him from being able to adequately articulate his claims or litigate this matter.

14 Regarding petitioner’s third argument, the Court has not provided for discovery in this matter, so that petitioner’s inability to conduct discovery does not support the appointment of counsel. See Rule 6(a), Rules Governing Section 2254 Cases. Notably, the Court’s review is limited to the record before the state courts when the state courts adjudicated the claims. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

19 Finally, it is not apparent to the Court at this stage that there is a likelihood of success on the merits of his habeas petition. Therefore, the Court finds that the exceptional circumstances required to justify the appointment of counsel under 28 U.S.C. § 1915 are not present at this stage and denies petitioner’s motion for the appointment of counsel.

23 /// 1 MOTION TO DIRECT PIERCE COUNTY PROSECUTOR’S RESPONSE 2 Petitioner requests that the Court order the Pierce County prosecutor to respond to his habeas petition because he was convicted in Pierce County Superior Court. See Dkt. 20.

4 Because the prosecutor is not a respondent in this action, the Court interprets this as a motion to add the prosecutor as a respondent.

6 In a habeas petition challenging a state court judgment and sentence, the correct respondent is the state officer with custody over petitioner—not the prosecutor of the county in which a petitioner was convicted. See 28 U.S.C. § 2242. This is typically (as here) the warden of the prison where a petitioner is confined. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996), as amended (May 8, 1996). There is generally only one proper respondent to a habeas petition: the person with the power to immediately “produce” the petitioner before the Court.

12 Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004).

13 Here, the appropriate respondent has been named and the Pierce County prosecutor would not appear to have the power to produce petitioner before this Court. Therefore, petitioner’s motion to add the Pierce County prosecutor as a respondent is denied.

16 CONCLUSION 17 Petitioner’s motions to appoint counsel and to have the Pierce County prosecutor directed to respond are denied. See Dkts. 18, 20.

19 Dated this 29th day of June, 2020.

A J. Richard Creatura United States Magistrate Judge