United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
habeas matter is before the Court on Petitioner Clifford
Miller's application to proceed in forma
pauperis (“IFP”) (ECF No. 3) and motion for
appointment of counsel (ECF No. 4). For the reasons discussed
below, the Court denies the IFP application and motion for
appointed counsel and directs Petitioner to pay the filing
fee within 30 days.
to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of
Practice, any person who is unable to prepay the fees in a
civil case may request permission to proceed IFP. Indigent
prisoners who do not have the money to pay the $5 filing fee
for a § 2254 habeas petition may apply for IFP status. A
prisoner's IFP application must be submitted on the form
provided by the court and include specific financial
documents. 28 U.S.C. § 1915; LSR 1-1, LSR 1-2.
considering the IFP application, the Court finds that
Petitioner is able to pay the $5 filing fee. In particular,
the Court notes that Petitioner's financial certificate
states that he has a current balance of $2, 881.52 in his
inmate trust account and he receives average monthly deposits
of $443.32. (ECF No. 3 at 5.) The IFP application will
therefore be denied. Petitioner will have 30 days from the
date of this order to have the $5 filing fee sent to the
Clerk of Court.
MOTION FOR APPOINTMENT OF COUNSEL
seeks the appointment of counsel to assist him in this habeas
proceeding. There is no constitutional right to appointed
counsel in a federal habeas corpus proceeding. Luna v.
Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing
Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)).
However, an indigent petitioner seeking relief under 28
U.S.C. § 2254 may request the appointment of counsel to
pursue that relief.18 U.S.C. § 3006A(a)(2)(B). The court
has discretion to appoint counsel when the interests of
justice so require. 18 U.S.C. § 3006A(a)(2). The
interests of justice so require “when the complexities
of the case are such that denial of counsel would amount to a
denial of due process.” Brown v. United
States, 623 F.2d 54, 61 (9th Cir. 1980). In the absence
of such circumstances, a request for counsel in a § 2254
proceeding is addressed to the sound discretion of the
district court. Id. (citing Dillon v. United
States, 307 F.2d 445, 447 (9th Cir. 1962)). When a
habeas petitioner has a good understanding of the issues and
the ability to present forcefully and coherently his
contentions, no attorney is legally required. LaMere v.
Risley, 827 F.2d 622, 626 (9th Cir. 1987).
motion, submitted on a prison form, argues that the
complexities of the issues in relation to his lengthy
sentence implicate a need for counsel to promote fairness and
justice. (ECF No. 4.) He asserts that he is unable to afford
counsel and his incarceration will impede his ability to
pursue his habeas claims. Counsel would assist Petitioner in
presenting substantive and procedural issues and ease the
Court's task of discerning the issues. The motion
indicates that additional facts are attached to the form in
support of Petitioner's request; however, nothing was
submitted with the motion.
Petitioner has not established that the interests of justice
require the appointment of counsel. Petitioner's petition
states multiple cognizable grounds for relief. Based on the
state appellate record and the petition, the Court finds that
the facts alleged and legal issues raised are not especially
complex. Since commencing this habeas action, Petitioner has
submitted multiple filings and has demonstrated sufficient
ability to write and articulate his claims. Although
Petitioner's lengthy sentence might weigh in favor of
counsel, he has not substantiated the bare allegation that
the substantive and procedural issues in this case are too
complex for his comprehension and abilities. He does not
allege that any medical or mental health condition affect his
ability to represent himself. As to discovery, the
Court's review of a 28 U.S.C. § 2254 petition is
generally limited to the record that was before the state
courts. Cullen v. Pinholster, 563 U.S. 170, 181-82
(2011). At this juncture the Court cannot determine whether
circumstances exist in this case that would nonetheless
justify a grant of discovery, and the Court will not appoint
counsel based on a speculative possibility of discovery. In
addition, the Court has denied Petitioner's IFP
application because he has the ability to pay the filing fee.
Thus, he has not demonstrated indigency as required for
appointment of counsel. In sum, Petitioner has not shown that
denial of counsel would violate due process, and the motion
therefore ordered that Petitioner's application to
proceed in forma pauperis (ECF No. 3) and motion for
appointment of counsel (ECF No. 4) are denied.
further ordered that Petitioner must pay the $5 filing fee
within 30 days of the date of this order.
further ordered that the Clerk of Court is directed to mail
Petitioner two copies of this order. Petitioner must
make the necessary arrangements to have a copy of ...