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United States District Court

Eastern District of California

Jose A. Soto,

Petitioner, No. Civ. S 04-2122 MCE PAN P

vs. Order

D. Adams, Warden,

Respondent.

-oOoPetitioner requests appointment of counsel on the grounds he

is indigent and lacks legal training and the law is complex. 

There is no absolute right to appointment of counsel in

habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th

Cir. 1996). However, whenever the court determines the interests

of justice so require, representation may be provided for any

financially eligible person who is seeking relief under section

18 U.S.C. § 2254. 18 U.S.C. § 3006A(a)(2)(B). Unless an

evidentiary hearing is necessary, the decision to appoint counsel 

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is discretionary. Bashor v. Risley, 730 F.2d 1228, 1234 (9th

Cir.), cert. denied, 469 U.S. 838 (1984); Rule 8(c), Rules

Governing § 2254 Cases. 

In deciding whether to appoint counsel the court exercises

discretion governed by a number of factors, including the

likelihood of success on the merits and the applicant’s ability

to present his claims in light of their complexity. Weygandt v.

Look, 718 F.2d 952, 954 (9th Cir. 1983); see also, LaMere v.

Risley, 827 F.2d 622, 626 (9th Cir. 1987). Ordinarily the

presumption of regularity in the state’s procedures for confining

prisoners suggests a lack of likely success and counsels against

appointment of counsel. See Maclin v. Freake, 650 F.2d 885, 887

(7th Cir. 1981). As a general rule, the court will not appoint

counsel unless the applicant shows his claim has merit in fact

and law. Id. Even if the applicant overcomes this hurdle, the

court will not appoint counsel if the law is settled and the

material facts are within the petitioner’s possession, viz., they

do not require investigation outside the prison walls. Id. at

887-88. 

Here, petitioner alleges (1) the evidence was insufficient

to convict; (2) the trial court erred in refusing to instruct the

jury on the definition of fear and the prosecution’s burden of

proof on that element; (3) admission of prior sex offenses

violated due process and diluted the state’s burden of proof; (4)

instructing the jury that if they found petitioner previously

committed a sexual offense they could infer he had a disposition

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to commit such offenses violated due process; and (5) the trial

court erred by instructing the jury for sentencing purposes that

it could find petitioner tied or bound a victim if it found

petitioner either restricted her movement or deprived one or more

of her senses. The law governing these issues is settled. 

Neither factual development nor legal insight are required

because these proceedings are limited to claims that already were

identified and presented to the California Supreme Court. There

is, on the record before the court, no reason to believe

appointment of counsel would be of significant benefit. 

 Petitioner’s September 21, 2004, request for the

appointment of counsel therefore is denied.

So ordered.

Dated: June 2, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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