United States District Court, W.D. Washington, Tacoma
Theresa L. Fricke, United States Magistrate Judge
State Court Record
October 19, 2017, the Honorable Benjamin H. Settle issued an
order declining to adopt the Report and Recommendation by the
Honorable Theresa L. Fricke (Dkt. 23) on the grounds that
petitioner's actual innocence claim had not been fully
briefed or considered. Dkt. 25. On October 25, 2017, the
undersigned issued an order directing the respondent to
submit a brief addressing the actual innocence exception to
the statute of limitations and allowing petitioner to submit
a response. Dkt. 26.
on Judge Settle's Order and the briefing submitted on the
actual innocence exception, the Court finds it necessary to
review the State court record in order to properly address
and determine this issue. Accordingly, respondent is directed
to file the complete State court record, including all
transcripts of the proceedings, on or before May 11,
Petitioner's “Motion for Nexus” (Dkt. 33),
“Motion for Evidentiary Hearing” (Dkt. 35),
“Motion to Order the State to Reply to Additional
Exceptions to the Time Bar” (Dkt. 36), and
“Motion for Extension of Time” to File Replies to
State's Responses to these Motions (Dkt. 48)
February 8, 2018, the Court issued an order re-opening
petitioner's “Motion for Nexus” (Dkt. 33),
“Motion for Evidentiary Hearing” (Dkt. 35), and
“Motion to Order the State to Reply to Additional
Exceptions to the Time Bar” (Dkt. 36) and re-noting the
motions to March 2, 2018. Dkt. 40. Pursuant to that order
respondent was directed to respond to petitioner's
motions on or before February 26, 2018, and petitioner was to
file replies on or before the noting date of March 2, 2018.
Id. On February 18, 2018, petitioner filed
objections to the Court's order reopening and re-noting
the motions. Dkt. 47. On February 26, 2018, petitioner moved
for additional time to file replies to respondent's
responses to the above motions due to delays in the prison
mail system. Dkt. 48. On March 19, 2018, District Court Judge
Benjamin H. Settle issued an order denying petitioner's
objections to the order re-opening and re-noting
petitioner's motions (Dkt. 40). Dkt. 51.
deadlines set by the Court's prior order have now passed
while petitioner's objections to the Court's order
were being resolved, and in light of the Court's order
directing respondent to file the complete State court record,
the Court hereby re-notes petitioner's “Motion for
Nexus” (Dkt. 33), “Motion for Evidentiary
Hearing” (Dkt. 35), and “Motion to Order the
State to Reply to Additional Exceptions to the Time
Bar” (Dkt. 36) to May 25, 2018.
may file responses to these motions on or before May
11, 2018, and petitioner may file replies on or
before the noting date of May 25, 2018.
Petitioner's motion for an extension of time to file his
replies to the above motions (Dkt. 48) is
GRANTED to the extent that his replies are
due on the new noting date of May 25, 2018.
Petitioner's Motion For Appointment of Counsel (Dkt. 45)
and Motion to Proceed In Forma Pauperis (Dkt.
February 28, 2018, petitioner filed a Motion for Appointment
of Counsel (Dkt. 45). In his motion, petitioner asks the
Court to appoint counsel because he is indigent and cannot
afford counsel, he is chronically mentally ill, has limited
education and no legal experience, he cannot understand
complex legal matters, he “has never had effective
counsel defend him, ever, ” and his claims have merit.
Dkt. 45, at 1-3. Petitioner also filed a Motion to Proceed
In Forma Pauperis (Dkt. 46) which appears to be
intended to support of his claim of indigency in connection
with his Motion for Appointment of Counsel.
Sixth Amendment right to counsel does not apply in habeas
corpus actions.” Knaubert v. Goldsmith, 791
F.2d 722, 728 (9th Cir. 1986); see also Pennyslvania v.
Finley, 481 U.S. 551, 555 (1987) (“[T]he right to
appointed counsel extends to the first appeal of right, and
no further.”). Appointment of counsel is required
“if necessary for the effective utilization of
discovery procedures . . ., or if an evidentiary hearing is
required.” Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983) (citing Rule 6(a) and Rule 8(c), 28 U.S.C.
foll. § 2254); see also Owino v. Napolitano,
575 F.3d 952, 956 (9th Cir. 2009). A district court also may
appoint counsel “under 18 U.S.C. § 3006A at any
stage of the case if the interest of justice so
requires.” Weygandt, 718 F.2d at 954. 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. “[W]hen the case
is so complex that due process violations will occur absent
the presence of counsel, ” counsel must be appointed.
Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th Cir.
1993). But when the Court “properly declines to hold an
evidentiary hearing, the court's denial of a motion to
appoint counsel at government expense does not amount to a
denial of due process.” Knaubert, 791 F.3d at
petitioner has moved for an evidentiary hearing (Dkt. 35).
Because the Court requires the State court record in order to
properly evaluate petitioner's actual innocence claim, it
is also not yet clear whether an evidentiary hearing will be
required in this case. Upon receipt of the State court
record, the Court will be able to properly address whether an
evidentiary hearing is required and whether it is appropriate
to appoint counsel in this case. Accordingly,
petitioner's Motion for Appointment of Counsel (Dkt. 45)
and Motion to Proceed In Forma Pauperis (Dkt. 46)
are also re-noted for consideration to May 25,
2018. Respondent may file a response to these
motions on or before May 11, 2018, and
petitioner may file a reply on or before the noting date of
May 25, 2018.
Petitioner's “Motion that the Clerk Change its
Reporting of Exhibits 1-37 re: Motion for Recusal/Affidavit
of Prejudice” (Dkt. 43)
contends that the exhibits (#1-37) he intended as attachments
to his “Response to the State's Brief” (Dkt.
32) were mistakenly attached to his “Motion for
Recusal/Affidavit of Prejudice” (Dkt. 31). Dkt. 43. He
requests that these exhibits (#1-37) be attached to the
correct submission, his “Response to the State's
Brief” (Dkt. 32). Id. Petitioner's motion
(Dkt. 43) is GRANTED. The Clerk is directed
to include the exhibits petitioner references in his motion
(numbered by the petitioner as exhibits #1-37 and currently
included as pages 50-304 of ...