United States District Court, W.D. Washington, Tacoma
ORDER APPOINTING COUNSEL
W. Christel United States Magistrate Judge
District Court has referred this action filed pursuant to 28
U.S.C. § 2254 to United States Magistrate Judge David W.
Christel. Petitioner Neil Grenning filed his federal habeas
Petition seeking relief from a state court conviction.
See Dkt. 8. After reviewing the relevant state court
decisions and the record before this Court, the Court
determined portions of the state court record essential for
this Court's review were not included in the record. Dkt.
28. The Court directed Respondent to provide the Court with a
proposed method which would allow the Court and Petitioner to
view a supplemental record containing copies of evidence
necessary for review of Petitioner's nine grounds for
23, 2017, Petitioner filed a letter addressed to
Respondent's attorney stating he does not want to view
any images at this time and does not believe it is necessary
to review the supplemental record. Dkt. 29. But, he reserved
his right to review the supplemental record, if it becomes
absolutely necessary. Id. Respondent filed
objections to the Order on June 26, 2017, requesting the
District Judge modify or vacate the Order. Dkt. 30.
light of Petitioner's letter and Respondent's
objections, the Court directed the parties to provide
briefing addressing: Whether counsel should be appointed to
represent Petitioner for the limited purpose of resolving
issues involving the production and review of the requested
supplemental record. Dkt. 32.
20, 2017, both Petitioner and Respondent filed briefs. Dkt.
35, 36. Petitioner requests counsel be appointed for the
limited purpose of resolving issues related to the production
and review of any supplemental record. See Dkt. 35.
Respondent states he does not oppose the limited appointment
of counsel in this case. Dkt. 36.
is no right appointed counsel in cases brought under 28
U.S.C. § 2254 unless an evidentiary hearing is required
or such appointment is “necessary for the effective
utilization of discovery procedures.” See McCleskey
v. Zant, 499 U.S. 467, 495 (1991); United States v.
Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995);
United States v. Angelone, 894 F.2d 1129, 1130 (9th
Cir. 1990); Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983); Rules Governing Section 2254 Cases in the United
States District Courts 6(a) and 8(c). The Court may appoint
counsel “at any stage of the case if the interest of
justice so require.” Weygandt, 718 F.2d at
754. In deciding whether to appoint counsel, the Court
“must evaluate the likelihood of success on the merits
as well as the ability of the petitioner to articulate his
claims pro se in light of the complexity of the
legal issues involved.” Id.
the Court has requested a supplemental record which contains
sensitive material. See Dkt. 28. Petitioner's
incarceration makes viewing the materials very difficult.
See Dkt. 30. For example, the materials are
currently under seal in the Pierce County Superior Court and
contain sensitive content which cannot be copied. Therefore,
the Court finds the interests of justice require the Court
appoint counsel for the limited purpose of representing
Petitioner on all matters related to the production and
review of any supplemental record.
Court appoints the Federal Public Defender for the Western
District of Washington (FPD) as limited counsel for
Petitioner. The FPD's representation of Petitioner is
limited to matters related to the production and review of
any supplemental record. The Clerk shall provide a copy of
this Order to: Michael Filipovic, Federal Public Defender,
Federal Public Defender's Office, 1601 Fifth Avenue,
Suite 700, Seattle, Washington 98101.
Petitioner is now represented by counsel, the Court orders
• The parties are directed to provide the Court with a
proposed method which will allow the Court and
Petitioner's counsel to review a supplemental record. The
supplemental record must contain copies of all evidence
related to Petitioner's nine grounds for relief,
including photographs, audio recordings, and physical
evidence, which was submitted to the jury and relied on by
the state court.
• The proposed method for reviewing the supplemental
record must be provided to the Court on or before August 25,
• After the parties have submitted the proposed method
for review of the supplemental record, the Court will enter a
scheduling order setting dates for: (1) the implementation of
the proposed method for review of the supplemental record;
and (2) filing supplemental briefing.
Clerk of Court is directed to re-note the Petition for ...