Avington v. Bennett

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA — 6 — DOMINIQUE AVINGTON, Case No. 3:24-cv-05749-LK-TLF 7 Petitioner, v. ORDER DENYING APPOINTMENT 8 OF COUNSEL JASON BENNETT, — 9 — Respondent. — 10 — 11 This matter comes before the Court on petitioner’s motion to appoint counsel. 12 Dkt. 12. For the reasons discussed below, the Court DENIES petitioner’s motion (Dkt. 13 12). 14 Petitioner requests the appointment of counsel contending that he cannot afford 15 an attorney, and that his petition raises complicated issues that are “above his 16 knowledge to adequately present to this Court[.]” Id. 17 There is no constitutional right to appointment of counsel in habeas petitions 18 because they are civil, not criminal, in nature. See Nevins v. Sumner, 105 F.3d 453 , 460 19 (9th Cir. 1996); Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988). Appointment 20 of counsel is mandatory only if the district court determines that an evidentiary hearing 21 is required. See Terrovona, 852 F.2d at 429 ; Brown v. Vasquez, 952 F.2d 1164 , 1168 22 (9th Cir.1992); Rules Governing Section 2254 Cases, Rule 8(c). If no evidentiary — 23 — — 24 — 1 hearing is necessary, the appointment of counsel remains discretionary. Wilborn v. 2 Escalderon, 789 F.2d 1328 , 1330–31 (9th Cir. 1986). 3 The Court may request an attorney to represent indigent civil litigants under 28 4 U.S.C. § 1915 (e)(1) but should do so only under “exceptional circumstances.” Agyeman 5 v. Corrections Corp. of Am., 390 F.3d 1101 , 1103 (9th Cir. 2004). “A finding of 6 exceptional circumstances requires an evaluation of both the likelihood of success on 7 the merits and the ability of the petitioner to articulate his claims pro se in light of the 8 complexity of the legal issues involved.” Wilborn, 789 F.2d at 1331 (internal citation and 9 quotation marks omitted). These factors must be viewed together before reaching a 10 decision on a request for counsel under § 1915(e)(1). Id. 11 The Court finds that this matter does not present exceptional circumstances 12 supporting the appointment of counsel. The issues presented in the petition are not 13 particularly complex, and petitioner has effectively articulated his claims about the 14 allegedly erroneous denial of a lesser included offense jury instruction and different 15 legal theories for conviction. Petitioner’s inability to afford an attorney and lack of legal 16 expertise are challenges faced by any pro se petitioner and do not present exceptional 17 circumstances. Finally, petitioner has not shown at this point a likelihood of success on 18 the merits and the Court has not recommended an evidentiary hearing. 19 // 20 // 21 // — 22 — — 23 — — 24 — 1 The Court finds that petitioner has not shown that appointment of counsel is 2 appropriate. Accordingly, the petitioner’s motion for the appointment of counsel (Dkt. 12) 3 is denied. — 4 — 5 Dated this 30th day of September, 2025. — 6 — — 7 — A — 8 — Theresa L. Fricke 9 United States Magistrate Judge — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —