Opinion
CIVIL CASE NO. 20-00027
02-05-2021
JAMES J. ESPERON, Petitioner, v. DR. JOSEPH CARBULLIDO, Respondent.
ORDER
1. Granting Application to Proceed Without Prepaying Fees or Costs
2. Denying Motion to Appoint Counsel
and
REPORT AND RECOMMENDATION to Dismiss Petition With Leave to Amend
ORDER
The Petitioner, having exhausted local court appeals and post-conviction remedies, seeks federal habeas relief pursuant to 28 U.S.C. § 2254. Pending the court are the Defendant's Application to Proceed Without Prepaying Fees or Costs (the "Application") and Motion for Appointment of Counsel. See ECF Nos. 2-3. The court issues the following Order on the Defendant's requests.
1. Application to Proceed Without Prepaying Fees or Costs
On August 26, 2020, the Plaintiff, an inmate confined at the Guam Department of Corrections ("DOC"), filed the Application to proceed without prepaying the $5.00 filing fee and cost of service on the Defendant. See ECF No. 2.
Based on a review of the Application, the Plaintiff is unemployed and the only income he receives in his disability payments of $235, and he has no money in a checking or savings account. Id. at 1. The Application indicates the Plaintiff has three minor dependents (two daughters and one son) and a credit card obligation of about $15,000. Id. at 2.
The court finds that the Plaintiff has no assets and no means by which to pay an initial partial filing fee. The court further finds that the Plaintiff has sufficiently shown that he is unable to pay the fees required to maintain this action The court grants the Application to proceed without prepayment of fees, however, the court is required to assess the full amount of the filing fee and orders the Plaintiff to pay the $5.00 fee when funds exist. See 28 U.S.C. § 1915(b)(1). See also 28 U.S.C. § 1915(b)(4) ("In no event shall a prisoner be prohibited from bringing a civil action . . . for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.").
2. Motion for Appointment of Counsel
On August 26, 2020, the Plaintiff filed a Motion for Appointment of Counsel, see ECF No. 3, requesting that the court appoint an attorney to assist him in this case. He contends that he is "not familiar with certain legal proceedings" and that he needs "an investigator to obtain much needed document to present to the court." Id.
There is no right to have counsel appointed incases brought under 28 U.S.C. § 2254. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further"). Rule 8(c) of the Rules Governing Section 2254 Proceedings for the United States District Courts only authorizes the court to appoint counsel when an evidentiary hearing is required if a petitioner qualifies to have counsel appointed under 18 U.S.C. § 3006A. Under Section 3006A, the court may appoint counsel in Section 2254 proceedings if the petitioner is a financially eligible individual and the court determines that "the interests of justice so require" representation by counsel. 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed is dependent on the petitioner's ability to articulate his claims pro se in light of the complexity of the legal issues involved and the likelihood of success on the merits. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983).
The court finds that the interests of justice does not require the appointment of counsel here since the court is recommending that the Chief Judge dismiss the Petition without prejudice. See discussion infra. Accordingly, the court denies the Petitioner's Motion for Appointment of Counsel at this time. If the Petitioner files an amended petition to correct the deficiency noted below, he may renew his request for the appointment of counsel at that time.
REPORT AND RECOMMENDATION
Having reviewed the Section 2254 Petition, the court notes the Petitioner has named an improper party as the Respondent.
A petitioner for habeas corpus relief must name the state officer having custody of him as the respondent to the petition. See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts ("if the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody."). See also Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). This person typically is the warden of the facility in which the petitioner is incarcerated. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992). Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction. Id.; Dunne v. Henman, 875 F.2d 244, 249 (9th Cir.1989).
Here, the Respondent named in the Petition is not the warden of the DOC facility where the Petitioner is incarcerated. The Petitioner has failed to name the correct individual as the Respondent, which deprives this court of personal jurisdiction over the Respondent. Accordingly, the court recommends that the Chief Judge dismiss the Petition without prejudice and allow the Petitioner to file an amended petition.
/s/ Michael J. Bordallo
U.S. Magistrate Judge
Dated: Feb 05, 2021
NOTICE
Failure to file written objections to this Report and Recommendation within fourteen (14) days from the date of its service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States District Judge. 28 U.S.C. § 636(b)(1)(B).