Agnew v. Hedgepath, No. 3:2011cv00757 - Document 14 (S.D. Cal. 2011)
Court Description: ORDER denying without prejudice 11 Petitioner's Motion for Appointment of Counsel. Signed by Magistrate Judge Ruben B. Brooks on 8/10/11. (All non-registered users served via U.S. Mail Service)(lao)
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Agnew v. Hedgepath Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILBRAUN DANDTON AGNEW, 12 Petitioner, 13 v. 14 MATTHEW CATE, et al., 15 Respondent. ) ) ) ) ) ) ) ) ) ) Civil No. 11cv00757 RBB ORDER DENYING PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 11] 16 Petitioner Jilbraun Dandton Agnew, a state prisoner proceeding 17 pro se and in forma pauperis, filed a Petition for Writ of Habeas 18 Corpus on April 11, 2011 [ECF Nos. 1, 3].1 Agnew argues that 19 during his jury trial, the prosecutor improperly questioned 20 witnesses about evidence that the trial judge had previously ruled 21 was inadmissible. (See Pet. 6-9, ECF No. 1.) On July 27, 2011, 22 Respondent Matthew Cate2 filed an Answer to Petition for Writ of 23 24 25 26 27 28 1 Because the Petition is not consecutively paginated, the Court will cite to it using the page numbers assigned by the electronic case filing system. 2 Agnew originally named “Hedgepath (Warden)” as the respondent. (Pet. 1, ECF No. 1.) On April 22, 2011, United States District Court Judge Barry Ted Moskowitz issued an order, in part, substituting Matthew Cate as Respondent in place of Hedgepath. (Order Granting Appl. Proceeding in Forma Pauperis 1 n.1, ECF No. 3.) 1 11cv00757 RBB Dockets.Justia.com 1 Habeas Corpus [ECF No. 12]. 2 judge jurisdiction; consequently, Judge Moskowitz referred the case 3 to this Court [ECF Nos. 9, 13]. 4 The parties consented to magistrate This Motion for Appointment of Counsel was filed nunc pro tunc 5 to July 26, 2011 [ECF No. 11]. In support of his request, 6 Petitioner asserts that the issues in this action are particularly 7 complex. 8 Agnew, the complex issues include prosecutorial misconduct, the 9 admission of evidence that was previously deemed inadmissible, and (Mot. Appointment Counsel 1, ECF No. 11.) According to 10 the trial court’s error in allowing the prosecutor to ask questions 11 about other instances of Agnew’s alleged misconduct. 12 Petitioner also maintains that due to the length of his sentence, 13 the interests of justice require an appointed attorney. 14 (Id.) (Id.) The Sixth Amendment right to counsel does not extend to 15 federal habeas corpus actions by state prisoners. 16 Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 17 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th 18 Cir. 1986). 19 seeking relief pursuant to 28 U.S.C. § 2254 may obtain representa- 20 tion whenever “the court determines that the interests of justice 21 so require . . . .” 22 2011); Terrovona v. Kincheloe, 912 F.2d 1176, 1181-82 (9th Cir. 23 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); see 24 Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). 25 interests of justice require an appointed lawyer when the court 26 conducts an evidentiary hearing on the petition. 27 U.S.C. foll. § 2254; Terrovona, 912 F.2d at 1181; Knaubert, 791 28 F.2d at 728; see Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. McCleskey v. Nonetheless, financially eligible habeas petitioners 18 U.S.C.A. § 3006A(a)(2)(B) (West Supp. 2 The Rule 8(c), 28 11cv00757 RBB 1 1994). 2 within the discretion of the district court. 3 728. 4 Otherwise, whether to appoint an attorney is entirely Knaubert, 791 F.2d at “Indigent state prisoners applying for habeas relief are not 5 entitled to appointed counsel unless the circumstances of a 6 particular case indicate that appointed counsel is necessary to 7 prevent due process violations.” 8 Knaubert, 791 F.2d at 728-29. 9 the issues involved are too complex for the petitioner to handle Chaney, 801 F.2d at 1196; see A due process violation may occur if 10 without the assistance of an attorney. 11 appointment of counsel may be necessary if the petitioner has 12 limited education and is incapable of presenting the claims in the 13 petition. 14 “[A] district court should consider the legal complexity of the 15 case, the factual complexity of the case, the petitioner’s ability 16 to investigate and present his claim, and any other relevant 17 factors.” In addition, the Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). Abdullah, 18 F.3d at 573. 18 Because these factors are useful in determining whether due 19 process requires court-appointed counsel, they are considered to 20 the extent possible based on the record before this Court. 21 argues, “Counsel should be appointed because the issues in this 22 case are particularly complex.” 23 No. 11.) 24 misconduct, admitting inadmissible evidence that was ruled during 25 [in] limine motion[,] court error allowing the prosecutor to infect 26 trial with uncharged misconduct.” 27 Agnew has sufficiently represented himself to date. 28 has prepared and filed a sixteen-page Petition for Writ of Habeas Agnew (Mot. Appointment Counsel 1, ECF He continues, “The issues include: (Id.) 3 Prosecutor Despite this contention, The Petitioner 11cv00757 RBB 1 Corpus with thirty-three pages of exhibits [ECF No. 1], a motion to 2 proceed in forma pauperis [ECF No. 2], and this Motion for 3 Appointment of counsel [ECF No. 11]. 4 within a period that spanned less than four months, and there is no 5 indication that anyone other than Petitioner drafted them. 6 adequately represented himself. 7 sufficiently for this Court to direct Respondent to file an answer 8 or other responsive pleading to the Petition [ECF No. 4]. 9 Agnew filed these documents He has Agnew’s Petition was pleaded From the face of the Petition, it appears that Petitioner has 10 a good understanding of this case and the legal issues involved. 11 (See Pet. 6-9, ECF No. 1.) 12 relevant facts as well as legal arguments with citations to case 13 law and other supporting authority. 14 and clarity of the Petition, Agnew has competently presented his 15 claims. 16 would make the appointment of counsel necessary at this time. 17 Bashor, 730 F.2d at 1234 (denying request for appointed counsel 18 where petitioner thoroughly presented the issues in his petition 19 and memorandum of law). 20 the federal courts are highly protective of a pro se petitioner’s 21 rights. 22 petition more liberally than it would construe a petition drafted 23 by counsel.” 24 1234. 25 do not require that Agnew receive attorney representation. 26 The Petition contains a recitation of (See id.) Based on the detail He has not pointed to any particular circumstances that See Moreover, “[t]he procedures employed by The district court is required to construe a pro se Knaubert, 791 F.2d at 729; see Bashor, 730 F.2d at At this stage of the proceedings, the interests of justice “Where the issues involved can be properly resolved on the 27 basis of the state court record, a district court does not abuse 28 its discretion in denying a request for court-appointed counsel.” 4 11cv00757 RBB 1 Hoggard, 29 F.3d at 471; McCann v. Armontrout, 973 F.2d 655, 661 2 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 409, 411 (9th Cir. 3 1986) (per curiam). 4 committed prejudicial misconduct during the jury trial by asking 5 witnesses questions about whether Petitioner had punched a woman in 6 an unrelated incident, which was evidence that the trial judge had 7 previously ruled was inadmissible. 8 Petitioner also asserts that the trial court erred in allowing the 9 prosecutor to ask witnesses questions about Agnew’s other alleged Here, Agnew alleges that the prosecutor The 10 misconduct. 11 relevant documents and transcripts to properly resolve the 12 allegations in the Petition on the basis of the record. 13 Answer Attach. #1 Notice Lodgment 1-2, ECF No. 12); Hoggard, 29 14 F.3d at 471; McCann, 973 F.2d at 661; Travis, 787 F.2d at 411. 15 (Id. at 6.) (Pet. 6-9, ECF No. 1.) The Court has been provided with all (See Additionally, Agnew maintains that the interests of justice 16 require appointed representation “[d]ue to the length of 17 Petitioner’s sentence,” which is thirty-eight years to life. 18 Appointment Counsel 1, ECF No. 11; see Pet. 1, ECF No. 1.) 19 habeas petitioner’s interest in release from illegal confinement 20 undoubtedly is high. 21 appointment of counsel when an evidentiary hearing is not held.” 22 Knaubert, 791 F.2d at 729. 23 counsel is typically only appointed in (1) capital cases, (2) cases 24 that turn on complex procedural or mixed legal and factual issues, 25 (3) actions litigated by petitioners who are mentally or physically 26 impaired, (4) matters that will likely require experts, (5) actions 27 involving petitioners who are unable to investigate crucial facts, 28 and (6) factually complex cases. (Mot. “A However, . . . due process does not require Further, in habeas corpus actions, Salango v. Sisto, No. CIV S-09- 5 11cv00757 RBB 1 0044-TJB, 2011 U.S. Dist. LEXIS 13071, at *7-8 (E.D. Cal. Feb. 7, 2 2011). 3 not central to whether appointed counsel is necessary to prevent 4 due process violations. 5 1196. 6 Thus, Agnew’s prison term of thirty-eight years to life is See id.; see also Chaney, 801 F.2d at Indeed, the assistance that counsel provides a petitioner is 7 valuable. 8 information from his or her client. 9 record and present to the court a reasoned analysis of the “An attorney may narrow the issues and elicit relevant An attorney may highlight the 10 controlling law.” 11 an evidentiary hearing is held, an attorney’s skill in developing 12 and presenting new evidence is largely superfluous; the district 13 court is entitled to rely on the state court record alone.” 14 (citing Sumner v. Mata, 449 U.S. 539, 545-57 (1981); 28 U.S.C. 15 § 2254(d)). 16 appointment of counsel, the court will draw an independent legal 17 conclusion after informing itself of the relevant law. 18 “Therefore, the additional assistance provided by attorneys, while 19 significant, is not compelling.” 20 Knaubert, 791 F.2d at 729. Even so, “[u]nless Id. If a court denies a petitioner’s request for Id. Id. When a pro se petitioner presents a claim that the state 21 court made an unreasonable determination of the facts, the court 22 may exercise its discretion to hold an evidentiary hearing. 23 n.6. 24 petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B). 25 see Rule 8(c), 28 U.S.C.A. foll. § 2254; Wood v. Wainwright, 597 26 F.2d 1054 (5th Cir. 1979). 27 the effective utilization of any discovery process. 28 U.S.C.A. foll. § 2254. Id. at In that circumstance, counsel must be appointed to a Id.; The Court may also appoint counsel for Rule 6(a), 28 An evidentiary hearing has not been ordered 6 11cv00757 RBB 1 in this case, and at this time, it does not appear that discovery 2 will be necessary. 3 For the reasons stated above, the interests of justice do not 4 compel the appointment of counsel to represent Agnew at this stage 5 of the case. 6 DENIED without prejudice. 7 Petitioner’s Motion for Appointment of Counsel is IT IS SO ORDERED. 8 9 DATED: August 10, 2011 Ruben B. Brooks United States Magistrate Judge 10 11 cc: All parties 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 K:\COMMON\BROOKS\CASES\HABEAS\AGNEW757\Order re Appointment of Counsel.wpd 11cv00757 RBB
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