1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KENYATTA Q. MITCHELL, Case No.: 24-cv-01080-AJB-JLB

14 Petitioner,

ORDER DENYING PETITIONER’S

15 v. MOTION TO APPOINT COUNSEL

16 CDCR DIRECTOR, et al., [ECF No. 8] 17 Respondents. 18 19 On August 12, 2024, petitioner Kenyatta Q. Mitchell (“Petitioner”) filed a Motion 20 for Appointment of Counsel. (ECF No. 8.) In support of the motion, Petitioner argues his 21 “imprisonment will greatly limit his ability to litigate this case,” the issues are “complex[,] 22 involving constitutional questions,” a lawyer would assist Petitioner with presentation of 23 all evidentiary materials “[i]n the event of an evidentiary hearing,” and he has made 24 “repeated efforts” to retain qualified counsel. (Id. at 1–2.) 25 The Sixth Amendment right to counsel does not extend to federal habeas corpus 26 actions by state prisoners. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We 27 have never held that prisoners have a constitutional right to counsel when mounting 28 collateral attacks upon their convictions, and we decline to so hold today.”) (internal 1 citation omitted); Redd v. Guerrero, 84 F.4th 874, 880 (9th Cir. 2023) (“[T]here is no 2 federal constitutional right to habeas counsel.”); Knaubert v. Goldsmith, 791 F.2d 722, 728 3 (9th Cir. 1986) (“[T]he sixth amendment right to counsel does not apply in habeas corpus 4 actions.”). However, financially eligible habeas petitioners seeking relief pursuant to 28 5 U.S.C. § 2254 may obtain representation whenever the court “determines that the interests 6 of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). 7 The interests of justice require appointment of counsel when it is necessary for 8 effective discovery or when the court conducts an evidentiary hearing on the petition. See 9 Rules Governing § 2254 Cases in the United States District Courts, R. 6(a) (“A judge may, 10 for good cause, authorize a party to conduct discovery under the Federal Rules of Civil 11 Procedure and may limit the extent of discovery. If necessary for effective discovery, the 12 judge must appoint an attorney for a petitioner who qualifies to have counsel appointed 13 under 18 U.S.C. § 3006A.”), R. 8(c) (“If an evidentiary hearing is warranted, the judge 14 must appoint an attorney to represent a petitioner who qualifies to have counsel appointed 15 under 18 U.S.C. § 3006A.”). The appointment of counsel is discretionary when no 16 evidentiary hearing is necessary. Knaubert, 791 F.2d at 728 (“Unless an evidentiary 17 hearing is required, the decision to appoint counsel is within the discretion of the district 18 court.”). At this point in the proceedings, there has been no request for discovery or an 19 evidentiary hearing, much less a determination by the Court that either is necessary, and 20 thus the decision whether to appoint counsel is discretionary. 21 “In deciding whether to appoint counsel in a habeas proceeding, the district court 22 must evaluate the likelihood of success on the merits as well as the ability of the petitioner 23 to articulate his claims pro se in light of the complexity of the legal issues involved.” 24 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). In the Ninth Circuit, 25 “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to appointed 26 counsel unless the circumstances of a particular case indicate that appointed counsel is 27 necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 28 Cir. 1986); see also Knaubert, 791 F.2d at 728–29. Moreover, “[t]he procedures employed 1 || by the federal courts are highly protective of a pro se petitioner’s rights[, and t]he district 2 || court is required to construe a pro se petition more liberally than it would construe a petition 3 || drafted by counsel.” Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 4 ||520 (1972) (holding pro se complaint to less stringent standard) (per curiam)). 5 The Petition in this case was pleaded sufficiently to warrant this Court’s order 6 directing Respondents to file an answer or other responsive pleading to the Petition. 7 || (See ECF No. 4.) Thus, Petitioner has sufficiently represented himself to date. Moreover, 8 1s too early in the proceedings for the Court to determine whether Petitioner has any 9 || likelihood of success on the merits or whether the issues presented in this case are complex. 10 || Neither an answer nor a motion to dismiss has been filed yet. (See id. at 2-3.) Accordingly, 11 Court finds the interests of justice do not warrant the appointment of counsel in this 12 ||case at this time, and the Court DENIES without prejudice Petitioner’s motion for 13 || appointment of counsel. Petitioner may renew his request at a later time. 14 IT IS SO ORDERED. 15 ||Dated: August 19, 2024 -

n. Jill L. Burkhardt V7 ited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28