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Jose Eustace Mendoza v. Makah Tribal Court

July 20, 2012

JOSE EUSTACE MENDOZA, PETITIONER,
v.
MAKAH TRIBAL COURT, RESPONDENT.



The opinion of the court was delivered by: Robert J. Bryan United States District Judge

ORDER ON APPLICATION TO PROCEED IN FORMA PAUPERIS, APPLICATION FOR COURT APPOINTED COUNSEL, AND SERVICE OF PETITION

This matter comes before the court on petitioner's application to proceed in forma pauperis (Dkt. 1) and on petitioner's application for court appointed counsel (Dkt. 1-2). The court has reviewed the relevant documents and the remainder of the file herein.

1. Application to Proceed In Forma Pauperis

On June 12, 2012, petitioner filed an application to proceed in forma pauperis in this action under the Indian Civil Rights Act, 25 U.S.C. § 1303. Dkt. 1.

The district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigency. See 28 U.S.C. § 1915(a).

Petitioner's declaration in support of his application to proceed in forma pauperis indicates that he is unable to afford to pay the filing fee at this time. Accordingly, petitioner's application to proceed in forma pauperis (Dkt. 1) should be granted.

2. Application for Court Appointed Counsel

On June 12, 2012, petitioner filed an application for court appointed counsel. Dkt. 1-2. Under 28 U.S.C. § 1915(e)(1), the court may request an attorney to represent any person unable to afford counsel. Under Section 1915, the court may appoint counsel in exceptional circumstances. Franklin v. Murphy, 745 F.2d 1221,1236 (9th Cir. 1984). To find exceptional circumstances, the court must evaluate the likelihood of success on the merits and the ability of the petitioner to articulate the claims pro se in light of the complexity of the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The court may also appoint counsel to represent petitioners who request habeas corpus relief. See 18 U.S.C. § 3006A, which provides that the court may appoint counsel at any stage of proceedings in habeas corpus cases, if the interest of justice so requires.

At this point, petitioner has not shown a likelihood of success on the merits of the case. Further, petitioner has presented his issues in an understandable manner. Because the case does not present exceptional circumstances, and because petitioner has not shown that the interest of justice requires appointment of counsel, the request for appointment of counsel should be denied.

3. Proper Respondent

Petitioner has named the Makah Tribal Court as the respondent in this case. The proper respondent in a federal habeas corpus petition is the petitioner's immediate custodian. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). However, the proper party in an action under 25 U.S.C. § 1303 has been expanded to include, in certain instances, a person or institution who has an interest in opposing the petition, and the power to give the petitioner what he seeks if the petition has merit. See Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 899 (2d Cir.), cert denied, 519 U.S. 1041 (1996); Quair v. Sisco, 359 F.Supp. 2d 948, 974 (E.D. Cal. 2004); Armentero v. I.N.S., 340 F.3d 1058, 1064 (9th Cir. 2003).

In the event that it appears to either party that the Makah Tribal Court is not a proper respondent in this action, (a) the parties may file a proposed stipulated order for substitution of the party respondent; or (b) if the parties cannot agree on the proper respondent, either party may file a motion to substitute the party respondent.

4. Service of Petition

Petitioner has not provided an address for the Makah Tribal Court. However, the address for the Makah Tribal Council is posted on the Makah Tribe website: http://www.makah.com/contact.html, last contacted June 19, 2012. The court ...


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