Free Response to Motion - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) KATIA MÉHU ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 016992) E-MAIL: [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RICHARD FARRALL,
Petitioner,

CV 04­00260­PHX­EHC

-vsDORA B. SCHRIRO, et al.,
Respondents.

RESPONSE TO MOTION FOR APPOINTMENT OF COUNSEL

Respondents hereby respond to Petitioner's motion for appointment of

17 habeas counsel (Doc. 36). For the reasons outlined below, Respondents request 18 that the motion be denied. 19 There is neither a constitutional nor statutory right to counsel in habeas

20 proceedings. See 18 U.S.C. § 3006A(a)(2)(B); 28 U.S.C. § 2254; Rule 8(c), 21 28 U.S.C. foll. § 2254; Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993); see 22 also Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996). Indigent state 23 prisoners applying for habeas corpus relief are not entitled to appointed counsel 24 unless the circumstances indicate that appointed counsel is necessary to prevent 25 due process violations. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); 26 accord Bonin v. Vasquez, 999 F.2d 425, 429 (9th Cir. 1993); Knaubert. v. 27 Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). The Court has discretion to appoint 28 counsel for indigents when it determines that "the interests of justice so require."
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1 18 U.S.C. § 3006A(2)(B); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984). 2 In contrast, the rules governing habeas proceedings mandate the appointment of 3 counsel if necessary for the effective utilization of discovery procedures or if an 4 evidentiary hearing is required. 28 U.S.C. foll. § 2254, Rules 6(a), 8(c). Accord, 5 Knaubert, 791 F.2d at 728. The Court has narrowly interpreted the provisions of 6 18 U.S.C. § 3006A(2)(B) to appoint counsel in habeas cases only when the case is 7 so complex that due process violations will occur absent the presence of counsel. 8 Chaney, 801 F.2d at 1196; accord, Bonin, 999 F.2d at 428­29. For example, the 9 Ninth Circuit recommended the appointment of counsel in Chaney because it was a 10 capital case and due to the complexities of the issues the district court would 11 review on remand. Chaney, 801 F.2d at 1196. 12 In deciding whether to appoint counsel in a habeas proceeding, the Court

13 must evaluate the likelihood of success on the merits as well as the ability of the 14 petitioner to articulate his claims pro se in light of the complexity of the legal 15 issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). The Court 16 also considers that, unless an evidentiary hearing is convened, an attorney's skill in 17 developing and presenting new evidence is largely superfluous; the Court is 18 entitled to rely on the state record alone. Knaubert, 791 F.2d at 729 (citing Sumner 19 v. Mata, 449 U.S. 539, 545­57, 101 S. Ct. 764, 768­69 (1981)). 20 The circumstances of this case do not compel the conclusion that the

21 interests of justice require the appointment of counsel. Petitioner pled no contest 22 to charges of sexual conduct committed against his daughter and stepdaughter. 23 (Doc. 12, Exhibits B­D.) After acceptance of the plea agreement, Petitioner 24 repeatedly requested that he be permitted to withdraw from the plea agreement. 25 (Exhibits E­G.) The trial court addressed the request each and every time it was 26 raised and denied the motion to withdraw, finding no manifest injustice. (Id.) 27 Petitioner subsequently sought post-conviction relief in state courts. (Exhibits H­ 28 P.) Petitioner's grounds for habeas relief relate to the knowing and voluntary
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1 nature of the plea. (Doc. 1.) 2 No due process violations may be extrapolated from the facts of this case.

3 The matter at issue is not legally or factually complex, the state court record has 4 been submitted to the Court, Petitioner has adequately presented his claims, and 5 the matter can be resolved on the basis of the state court record. The request for 6 appointment of counsel should be denied. 7 8 9 10 11 12 13 DATED this 12th day of July, 2007.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL s/KATIA MÉHU ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

I hereby certify that on this 12th day of July, 2007, I electronically transmitted the 14 attached document to the Clerk's Office using the ECF System for filing and deposited for mailing the attached document and the Notice of Electronic Filing to 15 the following, non-registered participant of the ECF System: 16 Richard Farrall, Jr. 148179 17 Box 1026 CACF-Florence 18 Central Arizona Correctional Facility PO Box 9600 1-A-41 19 Florence, AZ 85232 20 Petitioner 21 Tara Kristine Allen 22 Law Offices of Tara K Allen 439 Grand Dr Ste 156 23 Bigfork, MT 59911 24 Attorney for Petitioner 25 26 s/L. Lopez 27 28
CRM01­1224 22600

Case 2:04-cv-00260-EHC-BPV

Document 38

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Filed 07/12/2007

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