United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION FOR COUNSEL, MOTION TO STAY, AND
MOTION FOR EMERGENCY HEARING
Richard Creatura, United States Magistrate Judge
District Court has referred this petition for a writ of
habeas corpus to United States Magistrate Judge J. Richard
Creatura. The Court's authority for the referral is 28
U.S.C. § 636(b)(1)(A) and (B), and local Magistrate
Judge Rules MJR3 and MJR4. Petitioner Timothy Robert Petrozzi
filed the petition pursuant to 28 U.S.C. § 2254. He has
now filed a motion for appointment of counsel (Dkt. 11),
motion to stay dismissal of habeas until appointment of
counsel and to stay state court proceedings (Dkt. 13), and
motion for emergency hearing regarding his motion to stay
alleges that he is being denied counsel in his ongoing
competency hearings for three state criminal prosecutions.
Construed liberally, he requests that the Court appoint him
counsel for those hearings and for this habeas petition, that
the Court stay any orders of dismissal as to his habeas
petition until counsel is appointed, and that the Court stay
the state prosecutions until counsel has been appointed.
However, petitioner is still in the process of exhausting his
state judicial remedies and has not demonstrated the
exceptional circumstances necessary for appointment of
counsel in this proceedings. Therefore, the court denies
is a defendant in a state criminal proceeding and is
currently undergoing a state mental competency evaluation. He
filed this habeas petition in August of 2017. Dkt. 1. He
alleges that his constitutional rights have been violated,
but he has not pled facts alleging that he has fully
exhausted his remedies in state court. Dkt. 7. In October of
2017, the Court ordered that petitioner show cause why his
case should not be dismissed or file an amended complaint. At
that time, the Court noted that petitioner appeared to still
be exhausting his state judicial remedies and that he had
named improper respondents in his petition. Dkt. 8. He
responded, but did not address the Court's order, and
instead asserted that Washington state law requires this
Court to appoint him counsel. He also asked this Court to
stay any order of dismissal until counsel is appointed. Dkt.
12 (citing RCW 10.77.020). Finally he also filed a motion for
appointment of counsel (Dkt. 11) and motion to stay dismissal
of habeas until appointment of counsel and to stay state
court proceedings (Dkt. 13). He subsequently filed a motion
for an emergency hearing on his motions. Dkt. 19. The Court
has not yet served the petition or subsequent motions on
I. Appointment of Counsel
liberally, petitioner asks that the Court appoint him counsel
for this habeas petition as well as for his underlying mental
with regard to his habeas petition, there is no
constitutional right to appointment of counsel in habeas
petitions because they are civil, not criminal, in nature.
See Terrovona v. Kincheloe, 912 F.3d 1176, 1181 (9th
Cir. 1990). The Court may request an attorney to represent
indigent civil litigants under 28 U.S.C. § 1915(e)(1),
but should do so only under “exceptional
circumstances.” Agyeman v. Corrections Corp. of
Am., 390 F.3d 1101, 1103 (9th Cir. 2004). “A
finding of exceptional circumstances requires an evaluation
of both the likelihood of success on the merits and the
ability of the plaintiff to articulate his claims pro
se in light of the complexity of the legal issues
involved.” Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986).
petitioner has not demonstrated the exceptional circumstances
warranting appointment of counsel. He has not yet filed an
amended habeas petition and the Court has already described
the deficiencies in his current habeas petition. Dkt. 8.
Until petitioner remedies those deficiencies, the Court
cannot evaluate the likelihood of his success on the merits.
Further, petitioner has articulated the factual and legal
basis for his habeas petition in a sufficiently clear manner
as to indicate he does not presently require counsel to voice
his grievances. So far, that articulation demonstrates that
he is capable of articulating his claim, but he is unlikely
to succeed on the merits. Petitioner has not demonstrated the
circumstances warranting appointment of counsel.
petitioner argues he is entitled to counsel under RCW
10.77.020, a Washington law that provides counsel for
disabled individuals “[a]t any and all stages of the
proceedings pursuant to this chapter.” However, that
title relates to the rights of criminally insane individuals
during trial, sentencing, and appeal in state court.
See RCW 10.77. It does not contemplate restricting a
federal district court during a habeas corpus proceeding and
so is not applicable to this case. Therefore, the Court
denies plaintiff's motion for appointment of counsel as
to this habeas proceeding. Dkt. 11.
insofar as petitioner is claiming his right to counsel is
being infringed in his state court proceedings, the Court has
already noted that petitioner is currently in the process of
exhausting his state court remedies. See Dkt. 8 at
2-3. This Court may not entertain a habeas petition until
petitioner's state court remedies have been exhausted.
Picard v. Connor, 404 U.S. 170, 175 (1971). In the
event the Washington courts deny petitioner the relief he
requests, the Court may consider petitioner's complaints
concerning his access to counsel. Until then, the Court must
allow the state courts an opportunity to analyze
petitioner's request regarding appointment of counsel in
the state court proceeding.
because the Court has determined that counsel is not yet
warranted in this case, the Court also denies
petitioner's motion to stay dismissal until counsel is
appointed. Dkt. 13.
Stay of State ...