Agnew v. Hedgepath, No. 3:2011cv00757 - Document 18 (S.D. Cal. 2011)
Court Description: ORDER denying without prejudice 15 Petitioner's Second Motion for Appointment of Counsel. Signed by Magistrate Judge Ruben B. Brooks on 10/5/11. (All non-registered users served via U.S. Mail Service)(lao)
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Agnew v. Hedgepath Doc. 18 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 SECOND MOTION FOR APPOINTMENT OF COUNSEL [ECF NO. 15] 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 contends 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.) Respondent Matthew 22 Cate2 filed an Answer to Petition for Writ of Habeas Corpus on July 23 24 25 26 27 28 1 Because Agnew’s Petition is not consecutively paginated, the Court will cite to it using the page numbers assigned by the electronic case filing system. 2 The Petitioner 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 27, 2011 [ECF No. 12]. 2 judge jurisdiction, Judge Moskowitz referred the matter to this 3 Court [ECF Nos. 9, 13]. 4 to the Petition for Writ of Habeas Corpus was filed on August 25, 5 2011, which the Court construes as his Traverse [ECF No. 17]. 6 After the parties consented to magistrate Petitioner’s Reply to Respondent’s Answer Agnew’s first Motion for Appointment of Counsel was filed nunc 7 pro tunc to July 26, 2011 [ECF No. 11]. There, Petitioner argued 8 that the issues in the case are particularly complex. 9 Appointment Counsel 1, July 26, 2011, ECF No. 11.) (Mot. Agnew contended 10 that the complex issues include prosecutorial misconduct, the 11 admission of evidence that was previously deemed inadmissible, and 12 the trial court’s error in allowing the prosecutor to ask questions 13 about other instances of Agnew’s alleged misconduct. 14 also alleged that the interests of justice require an appointed 15 attorney in light of the length of his sentence. 16 denied Agnew’s request for court-appointed representation on August 17 10, 2011 [ECF No. 14]. 18 (Id.) (Id.) He This Court The Petitioner’s second Motion for Appointment of Counsel was 19 filed on August 8, 2011 [ECF No. 15],3 followed by his prisoner 20 trust fund account statement [ECF No. 16]. 21 second request, Agnew urges that he is unable to afford an attorney 22 because he does not have assets. 23 8, 2011, ECF No. 15.) 24 Prison, and he is unable to obtain adequate employment to afford 25 legal representation. 26 issues involved in this action are complex, and it is difficult for In support of his (Mot. Appointment Counsel 1, Aug. He is incarcerated at Salinas Valley State (Id.) Next, Petitioner maintains that the 27 28 3 The second Motion was not entered on the case docket, however, until after the Court’s August 10, 2011 Order was entered. 2 11cv00757 RBB 1 him to understand legal terms and authority. 2 found Respondent’s Answer difficult to understand. 3 further submits that he has a reading level of an eighth grader and 4 that he received assistance from other inmates when filing his 5 Petition. 6 access to the law library due to prison lock downs and his 7 education schedule. 8 9 (Id.) (Id. at 1-2.) Agnew (Id. at 2.) He Finally, Petitioner alleges that he has limited (Id.) The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. 10 Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 11 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th 12 Cir. 1986). 13 seeking relief pursuant to 28 U.S.C. § 2254 may obtain 14 representation whenever “the court determines that the interests of 15 justice so require . . . .” 16 Supp. 2011); Terrovona v. Kincheloe, 912 F.2d 1176, 1181-82 (9th 17 Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); 18 see Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). 19 interests of justice require an appointed lawyer when the court 20 conducts an evidentiary hearing on the petition. 21 U.S.C. foll. § 2254; Terrovona, 912 F.2d at 1181; Knaubert, 791 22 F.2d at 728; see Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 23 1994). 24 within the discretion of the district court. 25 728. 26 Nonetheless, financially eligible habeas petitioners 18 U.S.C.A. § 3006A(a)(2)(B) (West The Rule 8(c), 28 Otherwise, whether to appoint an attorney is entirely Knaubert, 791 F.2d at “Indigent state prisoners applying for habeas relief are not 27 entitled to appointed counsel unless the circumstances of a 28 particular case indicate that appointed counsel is necessary to 3 11cv00757 RBB 1 prevent due process violations.” Chaney, 801 F.2d at 1196; see 2 Knaubert, 791 F.2d at 728-29. 3 the issues involved are too complex for the petitioner to manage 4 without the assistance of an attorney. 5 may also be necessary if the petitioner has limited education and 6 is incapable of presenting the claims in the petition. 7 Bennett, 423 F.2d 948, 950 (8th Cir. 1970). 8 should consider the legal complexity of the case, the factual 9 complexity of the case, the petitioner’s ability to investigate and A due process violation may occur if The appointment of counsel Hawkins v. “[A] district court 10 present his claim, and any other relevant factors.” 11 Abdullah, 18 F.3d at 573. 12 Because these factors are useful in determining whether due 13 process requires court-appointed counsel, they are considered to 14 the extent possible based on the record before the Court. 15 Petitioner contends that he is unable to afford legal 16 representation, as he is “without stocks, bonds, or real estate, 17 nor any typ[e] of saving[s] accounts.” 18 1, Aug. 8, 2011, ECF No. 15.) 19 from securing adequate employment. 20 previously, even indigent state prisoners seeking habeas relief are 21 not entitled to a court-appointed attorney unless the circumstances 22 indicate that counsel is necessary to prevent due process 23 violations. 24 29. (Mot. Appointment Counsel Also, his incarceration prevents him (Id.) Yet, as discussed Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728- Indigence alone does not rise to this level. 25 Next, the Petitioner argues that this action involves complex 26 legal issues, and he has had difficultly understanding legal terms 27 as well as the Respondent’s Answer. 28 Aug. 8, 2011, ECF No. 15.) (Mot. Appointment Counsel 1-2, But despite this contention, Agnew has 4 11cv00757 RBB 1 adequately represented himself to date. He has prepared and filed 2 a sixteen-page Petition for Writ of Habeas Corpus with thirty-three 3 pages of exhibits [ECF No. 1], a motion to proceed in forma 4 pauperis [ECF No. 2], two motions seeking court-appointed counsel 5 [ECF Nos. 11, 15], his prisoner trust fund account statement [ECF 6 No. 16], and an eighteen-page Traverse [ECF No. 17]. 7 Petitioner filed these documents within a period that spanned less 8 than five months. 9 this Court to direct Respondent to file an answer or other The Agnew’s Petition was pleaded sufficiently for 10 responsive pleading to the Petition [ECF No. 4]. 11 similarly pleaded adequately. 12 The Traverse is It appears that Petitioner has a good understanding of this 13 action and the legal issues involved. 14 The Petition contains a recitation of relevant facts as well as 15 legal arguments with citations to case law and other supporting 16 authority. 17 initial pleading, Agnew has competently presented his claims. 18 has not pointed to any particular circumstances that would make the 19 appointment of counsel necessary at this time. 20 F.2d at 1234 (denying request for appointment of counsel where 21 petitioner thoroughly presented the issues in his petition and 22 memorandum of law). 23 federal courts are highly protective of a pro se petitioner’s 24 rights. 25 petition more liberally than it would construe a petition drafted 26 by counsel.” 27 1234. 28 do not require the Court to appoint an attorney. (See id.) (See Pet. 6-9, ECF No. 1.) Based on the detail and clarity of the He See Bashor, 730 Moreover, “[t]he procedures employed by the 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 5 11cv00757 RBB 1 “Where the issues involved can be properly resolved on the 2 basis of the state court record, a district court does not abuse 3 its discretion in denying a request for court-appointed counsel.” 4 Hoggard, 29 F.3d at 471; McCann v. Armontrout, 973 F.2d 655, 661 5 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 409, 411 (9th Cir. 6 1986). 7 committed prejudicial misconduct during the jury trial by asking 8 witnesses questions about whether Petitioner had punched a woman in 9 an unrelated incident, which was evidence that the trial judge had In this case, the Petitioner maintains that the prosecutor 10 previously ruled was inadmissible. 11 Agnew submits that the trial court erred in allowing the prosecutor 12 to ask witnesses questions about Agnew’s other purported 13 misconduct. 14 relevant documents and transcripts to properly resolve the 15 allegations in the Petition on the basis of the record. 16 Answer Attach. #1 Notice Lodgment 1-2, ECF No. 12); Hoggard, 29 17 F.3d at 471; McCann, 973 F.2d at 661; Travis, 787 F.2d at 411. 18 Finally, Petitioner asserts that he is entitled to an (Id. at 6.) (Pet. 6-9, ECF No. 1.) Also, The Court has been provided with all (See 19 appointed lawyer because he has limited access to the law library 20 due to his “education schedule” and random prison lock downs. 21 (Mot. Appointment Counsel 2, Aug. 8, 2011, ECF No. 15.) 22 Agnew does not allege that he lacks reasonable access to the law 23 library, and this does not establish that the interests of justice 24 require the appointment of counsel. 25 Even so, Indeed, the assistance that a lawyer provides a petitioner is 26 valuable. “An attorney may narrow the issues and elicit relevant 27 information from his or her client. 28 record and present to the court a reasoned analysis of the 6 An attorney may highlight the 11cv00757 RBB 1 controlling law.” 2 “[u]nless an evidentiary hearing is held, an attorney’s skill in 3 developing and presenting new evidence is largely superfluous; the 4 district court is entitled to rely on the state court record 5 alone.” 6 28 U.S.C. § 2254(d)). 7 appointment of counsel, the court will draw an independent legal 8 conclusion after informing itself of the relevant law. 9 “Therefore, the additional assistance provided by attorneys, while 10 Knaubert, 791 F.2d at 729. Id. (citing Sumner v. Mata, 449 U.S. 539, 545-57 (1981); If a court denies a petitioner’s request for significant, is not compelling.” 11 Nonetheless, Id. Id. When a self-represented petitioner presents a claim that the 12 state court made an unreasonable determination of the facts, the 13 district court may exercise its discretion to hold an evidentiary 14 hearing. 15 appointed to a petitioner who qualifies under 18 U.S.C. 16 § 3006A(a)(2)(B). 17 Wood v. Wainwright, 597 F.2d 1054 (5th Cir. 1979). 18 appoint an attorney for the effective utilization of any discovery 19 process. 20 hearing has not been ordered, and at this time, it does not appear 21 that discovery will be necessary. Id. at n.6. In that circumstance, counsel must be Id.; see Rule 8(c), 28 U.S.C.A. foll. § 2254; Rule 6(a), 28 U.S.C.A. foll. § 2254. Courts may also An evidentiary 22 For the reasons stated above, the interests of justice do not 23 compel the appointment of counsel to represent Agnew at this stage 24 // 25 // 26 // 27 // 28 // 7 11cv00757 RBB 1 of the proceedings. 2 Counsel is DENIED without prejudice. 3 Petitioner’s second Motion for Appointment of IT IS SO ORDERED. 4 5 DATED: October 5, 2011 6 7 cc: _____________________________ Ruben B. Brooks United States Magistrate Judge All parties 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 K:\COMMON\BROOKS\CASES\HABEAS\AGNEW757\2nd Order re Appointment of Counsel.wpd 11cv00757 RBB
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