UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
July 20, 2012
JOSE EUSTACE MENDOZA, PETITIONER,
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 will use that address until otherwise advised by the parties.
The Clerk shall arrange for service by certified mail upon the Makah Tribal Court c/o Makah Tribal Council, P.O. Box 115, Neah Bay, WA 98357, of a copy of the Petition (Dkt. 1-1), of all documents in support thereof, and of this Order. All costs of service shall be advanced by the United States. The Clerk shall assemble the necessary documents to effect service. The Clerk shall send Petitioner a copy of this Order, and of the General Order.
Not later than August 20, 2012, Respondent shall file and serve an answer to the petition, including a copy of the relevant record. The answer shall address any procedural issues related to the petition as well as the merits of the claims. Respondent shall file the answer with the Clerk of Court and serve a copy of the answer upon Petitioner.
The answer will be treated in accordance with Local Rule CR 7. Accordingly, upon receipt of the Answer, the Clerk will note the matter for consideration on the fourth Friday after the answer is filed. Petitioner may file and serve a response not later than on the Monday immediately preceding the Friday appointed for consideration of the matter. Respondent may file and serve a reply not later than the Friday designated for consideration of the matter.
Accordingly, it is hereby ORDERED that petitioner's application to proceed in forma pauperis (Dkt. 1) is GRANTED. Petitioner's application for court appointed counsel (Dkt. 1-2) is DENIED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.
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