(HC)Manago v. Cate, No. 1:2011cv01172 - Document 29 (E.D. Cal. 2012)
Court Description: ORDER Denying Petitioner's Motion For The Appointment Of Counsel (Doc. 27 ), signed by Magistrate Judge Barbara A. McAuliffe on 11/20/2012. (Fahrney, E)
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(HC)Manago v. Cate Doc. 29 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEWART MANAGO, 12 Petitioner, 13 v. 14 MATTHEW CATE, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—01172–AWI-BAM-HC ORDER DENYING PETITIONER’S MOTION FOR THE APPOINTMENT OF COUNSEL (DOC. 27) 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 303. 23 understands to be in part Petitioner’s request for the 24 appointment of counsel, which was included in Petitioner’s 25 objections to previously issued findings and recommendations 26 concerning Respondent’s motion to dismiss the petition. 27 [filed on October 31, 2012].) 28 The matter has been referred to the Pending before the Court is what the Court (Doc. 27 Petitioner states that this Court denied Petitioner’s 1 Dockets.Justia.com 1 previous, timely request for the appointment of counsel in his 2 habeas proceeding.1 3 completed high school, has had no legal training, and has been 4 diagnosed by state medical personnel as suffering from 5 schizoaffective disorder and other serious disorders from 1994 to 6 the present. 7 the mental health programs of the California Department of 8 Corrections and Rehabilitation (CDCR) and a participant of the 9 long-term treatment program from March 1994 to the present while Petitioner further states that he has not Petitioner states that he has been a participant in 10 on anti-psychotic medications such as Lithium and Zyprexa. 11 27, 1-2.) 12 (Doc. There currently exists no absolute right to appointment of 13 counsel in habeas proceedings. 14 258 F.2d 479, 481 (9th Cir. 1958); Mitchell v. Wyrick, 727 F.2d 15 773, 774 (8th Cir. 1984). 16 does not apply in habeas corpus actions, which are civil in 17 nature. 18 Anderson, 258 F.2d at 481. 19 See, e.g., Anderson v. Heinze, The Sixth Amendment right to counsel Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); However, a Magistrate Judge may exercise discretion to 20 appoint counsel at any stage of a habeas corpus proceeding if the 21 interests of justice require it. 22 the Rules Governing Section 2254 Cases. 23 evaluates the likelihood of a petitioner’s success on the merits 24 and the ability of a petitioner to articulate his claims pro se 25 in light of the complexity of the of the legal issues involved. 18 U.S.C. § 3006A; Rule 8(c) of A district court 26 27 28 1 The Court notes that in Petitioner’s previous motion for appointment of counsel, Petitioner did not refer to his history of mental health symptoms or treatment. (Doc. 6.) 2 1 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 2 A district court abuses its discretion in denying an 3 indigent’s request for appointed counsel pursuant to 18 U.S.C. 4 § 3006A(g) if appointment of counsel is necessary to prevent due 5 process violations, such as when the case is so complex that due 6 process violations will occur absent the presence of counsel. 7 Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993) (citing 8 Chaney, 801 F.2d at 1196). 9 Here, the pending matter in Petitioner’s case is 10 Respondent’s motion to dismiss the petition on the ground that 11 Petitioner failed to exhaust his state administrative and 12 judicial remedies. 13 which he disputed the Respondent’s contentions. 14 own efforts to exhaust administrative and judicial remedies 15 constitute the basis of the Respondent’s motion. 16 are events peculiarly within Petitioner’s own knowledge and 17 competency. 18 novel, or otherwise of a nature that would require the assistance 19 of counsel. 20 Petitioner filed opposition to the motion in The Petitioner’s Such matters The matters before the Court are thus not complex, Petitioner states that he did not finish high school. (Doc. 21 27 at 2, 7.) 22 that in a mental health assessment made in 2004, it was reported 23 that Petitioner was a high school graduate and a paralegal who 24 used his skills to petition numerous grievances and to win an ISU 25 investigation into the use of excessive force and a federal civil 26 rights violation case; Petitioner reported that he used the power 27 of the pen in place of the power of the fist. 28 Similarly, an interdisciplinary progress note dated September 5, However, the records Petitioner submitted reflect 3 (Id. at 44.) 1 2007, reflected that Petitioner had earned his GED while in the 2 California Youth Authority, and he was working towards a 3 paralegal certification. 4 evaluation from 2011 reflects that Petitioner was verbose, 5 argumentative, and litigious. 6 established that a lack of education or ability to litigate 7 requires the appointment of counsel. 8 9 (Id. at 74.) A mental health (Id. at 75.) Petitioner has not Petitioner attached to his objections seventy pages of prison records detailing some aspects of Petitioner’s mental 10 health status, medication, and treatment from 1995 through 2012. 11 (Id. at 12-81.) 12 old. 13 mental health treatment and diagnoses of various mental 14 conditions over the years. 15 mental health evaluation in March 2008, Petitioner was diagnosed 16 with schizoaffective disorder in remission with medication, 17 borderline personality disorder, and post-traumatic stress 18 disorder; it was noted that he had excellent communication skills 19 and verbal and written skills, no obvious signs of a thought 20 disorder, good orientation, and paranoid ideation with respect to 21 staff retribution. 22 treatment plan reflected that he had been stable on his 23 medications for over six months with a global assessment of 24 functioning of 60 or 65, which reflects only mild symptoms. 25 at 75.) 26 that Petitioner had not received any disciplinary charges for two 27 years; Petitioner communicated well with several outside legal or 28 watchdog organizations, had several lawsuits against the CDCR, However, most of the records are over five years Petitioner asserts and establishes that he has a history of More recent records show that at a (Id. at 41-42.) In 2011, a mental health (Id. In January 2012, a mental health treatment plan reflects 4 1 was compliant with his medication regimen, and was functional and 2 stable for ninety days or more. 3 Petitioner reported doing well; he was adequately groomed, 4 behaved calmly and cooperatively, had clear and coherent speech, 5 linear and goal-directed thought process, and a history of 6 auditory hallucinations that were ongoing but did not produce any 7 associated distress. 8 and attention were within normal limits; his mood swings and 9 depressive and anxiety symptoms were stable. (Id. at 76.) In 2012, Petitioner’s judgment, insight, cognition, The diagnosis was 10 mood disorder, not otherwise specified, and a personality 11 disorder. 12 progress note in March 2012 that his medications (15 milligrams 13 of Abilify and 15 milligrams of Remeron) were effective and 14 produced no side-effects. 15 (Id. at 77.) Petitioner reported in a psychiatric (Id. at 78.) In summary, Petitioner has not presented evidence that would 16 support a finding that due to mental condition or illness, he is 17 prevented him from being able to understand or participate in 18 this proceeding. 19 Petitioner, considered in light of the stage of the present 20 proceedings, does not indicate that Petitioner's mental condition 21 is such that his due process rights are likely to be violated if 22 he is required to represent himself. 23 Further, the information submitted by Accordingly, the Court does not find that, at this time, the 24 interests of justice require the appointment of counsel. 18 25 U.S.C. § 3006A. 26 /// 27 /// 28 /// 5 1 2 3 4 Accordingly, it is ORDERED that Petitioner's request for the appointment of counsel is DENIED. IT IS SO ORDERED. Dated: 10c20k November 20, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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