-RBB Rodriguez v. Cate et al, No. 3:2010cv02651 - Document 10 (S.D. Cal. 2011)
Court Description: ORDER denying 3 Motion to Appoint Counsel without prejudice. Signed by Magistrate Judge Ruben B. Brooks on 2/4/11. (All non-registered users served via U.S. Mail Service)(lao)
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-RBB Rodriguez v. Cate et al Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOSE MIGUEL RODRIGUEZ, 11 12 13 14 Petitioner, v. RAUL LOPEZ; EDMUND G. BROWN, JR., 15 Respondent. ) ) ) ) ) ) ) ) ) ) ) Civil No. 10cv02651 DMS (RBB) ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL [ECF NO. 3] 16 17 Petitioner Jose Miguel Rodriguez, a state prisoner proceeding 18 pro se and in forma pauperis, filed a Petition for Writ of Habeas 19 Corpus on December 22, 2010 [ECF Nos. 1, 5].1 20 that the restitution fine imposed by the trial court violates the 21 Eighth Amendment’s prohibition against excessive fines, and 22 constitutes an erroneous application of the sentencing guidelines. 23 (See Pet. 6, 13-14, ECF No. 1.) 24 // 25 // Rodriguez argues 26 27 28 1 Because Rodriguez’s Petition is not consecutively paginated, the Court will cite to it using the page numbers assigned by the electronic case filing system. 1 10cv02651 DMS (RBB) Dockets.Justia.com 1 Petitioner filed this Request for Appointment of Counsel the 2 same day [ECF No. 3].2 3 representation, Rodriguez asserts that he is incarcerated at 4 California State Prison in Corcoran, California.3 5 Appointment Counsel 1, ECF No. 3.) 6 indigent and is unable to afford an attorney to represent him. 7 (Id.) 8 is $0 per month.” 9 In support of his request for attorney (Req. Also, he states that he is Rodriguez contends, “My total assets are $0 and my income (Id.) On January 6, 2011, this Court issued an Order Sua Sponte 10 Substituting Respondent [ECF No. 7]. 11 of the Court to modify the docket to reflect “Matthew Cate, 12 Secretary” as Respondent in place of “Raul Lopez” and “Edmund G. 13 Brown, Jr.” 14 only Respondent. 15 (Order 2, ECF No. 7.) The Court ordered the Clerk Therefore, Matthew Cate is the (See id.) The Sixth Amendment right to counsel does not extend to 16 federal habeas corpus actions by state prisoners. 17 Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 18 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 19 (9th Cir. 1986). 20 petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain 21 representation whenever “the court determines that the interests 22 of justice so require . . . .” 23 Supp. 2010); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. McCleskey v. Nonetheless, financially eligible habeas 18 U.S.C. § 3006A(a)(2)(B) (West 24 25 26 27 28 2 The Court will also cite to Rodriquez’s Request for Appointment of Counsel using the page numbers assigned by the Court’s electronic case filing system. 3 In his Notice of Change of Address filed December 29, 2010, it appears Petitioner was transferred to the Substance Abuse Treatment Facility in Corcoran, California, where he is currently incarcerated [ECF No. 4]. 2 10cv02651 DMS (RBB) 1 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); 2 Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). 3 evidentiary hearing is required, a court’s decision of whether to 4 appoint an attorney is discretionary. 5 1177; Knaubert, 791 F.2d at 728; Abdullah v. Norris, 18 F.3d 571, 6 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll. § 2254 (West Supp. 7 2010). 8 9 Unless an Terrovona, 912 F.2d at “Indigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances of a 10 particular case indicate that appointed counsel is necessary to 11 prevent due process violations.” 12 Knaubert, 791 F.2d at 728-29. 13 in the absence of counsel if the issues involved are too complex 14 for the petitioner. 15 be necessary if the petitioner has such limited education that he 16 or she is incapable of presenting his or her claims. 17 Bennett, 423 F.2d 948, 950 (8th Cir. 1970). 18 appointment of counsel is required for habeas petitioners with 19 nonfrivolous claims, a district court should consider the legal 20 complexity of the case, the factual complexity of the case, the 21 petitioner’s ability to investigate and present his claim, and any 22 other relevant factors.” 23 v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990); Johnson v. 24 Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986)). Chaney, 801 F.2d at 1196; A due process violation may occur In addition, the appointment of counsel may Hawkins v. “To determine whether Abdullah, 18 F.3d at 573 (citing Battle 25 Because these factors are useful in determining whether due 26 process requires court-appointed counsel, they are considered to 27 the extent possible based on the record before the Court. 28 Rodriguez has sufficiently represented himself to date. 3 He has 10cv02651 DMS (RBB) 1 prepared and filed the following documents: 2 Petition [ECF No. 1], a declaration in support of a motion for 3 leave to proceed in forma pauperis [ECF No. 2], this Request for 4 Appointment of Counsel [ECF No. 3], and a notice of change of 5 address [ECF No. 4]. 6 Petition: 7 the trial court’s order denying Rodriguez’s petitioner for writ of 8 habeas corpus, (3) the appellate court’s order denying Rodriguez’s 9 petition, (4) the state supreme court’s order denying his a fifty-six page Rodriguez included six exhibits with the (1) the state trial court reporter’s transcripts, (2) 10 petition, (5) the probation officer’s report, and (6) a prison 11 inmate statement report. 12 all of these documents within a period that spanned one week, and 13 there is no indication that anyone other than Petitioner drafted 14 them. 15 represented himself. 16 (Pet. 17, ECF No. 1) Rodriguez filed The Court’s docket reflects that Rodriguez has adequately From the face of the Petition, filed pro se, it appears that 17 Rodriguez has a good understanding of this case and the legal 18 issues involved. 19 facts with citations to the applicable exhibits. 20 12-13.) 21 citations to case law and other supporting authority. 22 6, 14-15.) 23 sufficient to competently present his claims. 24 identified any particular circumstances that would make the 25 appointment of counsel necessary at this time. 26 F.2d at 1234 (denying request for appointed counsel where 27 petitioner thoroughly presented the issues in his petition and 28 memorandum of law). The Petition contains a recitation of relevant (See id. at 6, Rodriguez’s Petition also includes legal argument and (See id. at The detail and clarity of the pleading is more than 4 Petitioner has not See Bashor, 730 10cv02651 DMS (RBB) 1 Moreover, “[t]he procedures employed by the federal courts 2 are highly protective of a pro se petitioner’s rights. 3 district court is required to construe a pro se petition more 4 liberally than it would construe a petition drafted by counsel.” 5 Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 6 520 (1972) (per curiam) (holding pro se complaint to less 7 stringent standard)). 8 sufficiently for this Court to direct Respondent to file an answer 9 or other responsive pleading to the Petition [ECF No. 6]. 10 interests of justice do not require that Rodriguez receive 11 attorney representation at this stage of the proceedings. 12 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). 13 The Rodriguez’s Petition was pleaded The See “Where the issues involved can be properly resolved on the 14 basis of the state court record, a district court does not abuse 15 its discretion in denying a request for court-appointed counsel.” 16 Hoggard, 29 F.3d at 471 (citation omitted); McCann v. Armontrout, 17 973 F.2d 655, 661 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 18 409, 411 (9th Cir. 1986) (per curiam) (finding the district court 19 did not abuse its discretion in denying the petitioner’s request 20 for appointment of counsel where the allegations were properly 21 resolved on the state court record). 22 the restitution fine imposed by the sentencing court and argues 23 that it violates the Eighth Amendment’s prohibition against 24 excessive fines. 25 he alleges that the trial court did not consider the mandatory 26 factors of California Penal Code section 1202.4(c), such as 27 Petitioner’s future ability to pay, when imposing a restitution 28 fine that exceeded the two hundred-dollar minimum. Here, Rodriguez challenges (See Pet. 6, 13-14, ECF No. 1.) 5 Specifically, (Id. at 13.) 10cv02651 DMS (RBB) 1 Rodriguez provided the Court with relevant documents and 2 transcripts from the state court record. 3 appears that the Court will be able to properly resolve the 4 allegations in the Petition on the basis of the record. 5 Travis, 787 F.2d at 411. 6 (See id. at 17.) It See Indeed, the assistance that counsel provides is valuable. 7 “An attorney may narrow the issues and elicit relevant information 8 from his or her client. 9 present to the court a reasoned analysis of the controlling law.” An attorney may highlight the record and 10 Knaubert, 791 F.2d at 729. 11 noted, “[U]nless an evidentiary hearing is held, an attorney’s 12 skill in developing and presenting new evidence is largely 13 superfluous; the district court is entitled to rely on the state 14 court record alone.” 15 545-57 (1981); 28 U.S.C. § 2254(d)). 16 petitioner’s request for appointment of counsel, the court will 17 draw an independent legal conclusion after informing itself of the 18 relevant law. 19 (1985)). 20 attorneys, while significant, is not compelling.” 21 But as the Ninth Circuit in Knaubert Id. (citing Sumner v. Mata, 449 U.S. 539, If a court denies a See id. (citing Miller v. Fenton, 474 U.S. 104, 113 “Therefore, the additional assistance provided by Id. If an evidentiary hearing is ordered, Rule 8(c) of the Rules 22 Governing Section 2254 Cases requires that counsel be appointed to 23 a petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B). 24 8(c), 28 U.S.C. foll. § 2254; see Wood v. Wainwright, 597 F.2d 25 1054 (5th Cir. 1979). 26 for the effective utilization of any discovery process. 27 6(a), 28 U.S.C. foll. § 2254. 28 release from illegal confinement undoubtedly is high. Rule Additionally, courts may appoint counsel Rule “A habeas petitioner’s interest in 6 However, 10cv02651 DMS (RBB) 1 consideration of remaining factors leads to the conclusion that 2 due process does not require appointment of counsel when an 3 evidentiary hearing is not held.” 4 Knaubert, 791 F.2d at 729. Here, Rodriguez has requested an evidentiary hearing in his 5 Petition. 6 evidentiary hearing would be useful in assessing [his] present 7 financial status, as well as his ability to pay the restitution 8 fines.” 9 granted, and no evidentiary hearing is currently scheduled. (Pet. 1, 14, ECF No. 1.) (Id. at 14.) He argues that “[a]n Nonetheless, this request has not been 10 Additionally, at this time, it does not appear that discovery will 11 be necessary. 12 For the reasons stated above, the interests of justice do not 13 compel court-appointed representation, and Petitioner’s Request 14 for Appointment of Counsel is DENIED without prejudice. 15 IT IS SO ORDERED. 16 17 DATED: February 4, 2011 Ruben B. Brooks United States Magistrate Judge 18 19 20 cc: Judge Sabraw All parties 21 22 23 24 25 26 27 28 7 K:\COMMON\BROOKS\CASES\HABEAS\RODRIGUEZ2651\Order re Appointment Counsel.wpd 10cv02651 DMS (RBB)
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