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Michael David Murphy v. Warden Tim Wengler

February 9, 2012

MICHAEL DAVID MURPHY, PETITIONER,
v.
WARDEN TIM WENGLER,*FN1 RESPONDENT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court in this habeas corpus action is Petitioner's Motion for Appointment of Counsel (Dkt. 12) and Respondent's Motion to Dismiss (Dkt. 9). Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 4, 8.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Having fully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that the decisional process would not be significantly aided by oral argument. Therefore, in the interest of avoiding further delay, the Court shall decide this matter on the written motions, briefs, and record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

BACKGROUND

The State brought multiple criminal charges against Petitioner in the Fourth Judicial District Court in Ada County, Idaho. Pursuant to a plea agreement, Petitioner pleaded guilty to and was convicted of one count of robbery, for which he was sentenced to 40 years fixed with life indeterminate. He also pleaded guilty to and was convicted of three counts of rape, for which he was sentenced to concurrent terms of 40 years fixed with life indeterminate. Judgment was entered on December 31, 1992. (State's Lodging A-1.)

Petitioner filed a direct appeal in 1993 and a post-conviction relief petition in state court in 1995. He pursued both cases through the state appellate courts, without success. (State's Lodgings B-1 to B-5, C-1 to D-13.) In 2006, Petitioner filed a Rule 35 motion to correct his sentence and pursued it through appeal, again without success. (State's Lodgings E-1 to F-8.)

Petitioner filed a first federal habeas corpus petition (first petition) in 2007, which was dismissed with prejudice in 2008. That action is discussed in detail below.

Petitioner filed a successive state post-conviction application in 2008, containing claims based on Estrada v. State, 149 P.3d 833, 838 (Idaho 2006). Estrada is an Idaho Supreme Court case relying on Estelle v. Smith, 451 U.S. 454 (1981), holding that a criminal defendant has a Fifth and Sixth Amendment right to assistance of counsel during a court-ordered psychosexual evaluation to be used for sentencing. (State's Lodging G-1.) The Idaho Court of Appeals determined that Petitioner's successive state post-conviction application was untimely, and that no exception permitted him to proceed on the untimely Estrada claims, because Estrada did not announce a new rule of law that should be given retroactive effect. (State's Lodging H-3.)

Petitioner filed his current federal Petition for Writ of Habeas Corpus (second petition) on October 15, 2010. Petitioner brings several federal claims based on Estrada.

MOTION FOR APPOINTMENT OF COUNSEL

Petitioner has requested appointment of counsel in this case. (Dkt. 44.) There is no constitutional right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755 (1991). A habeas petitioner has a right to counsel, as provided by rule, if counsel is necessary for effective discovery or an evidentiary hearing is required in his case. See Rules 6(a) & 8(c) of the Rules Governing Section 2254 Cases. In addition, the Court may exercise its discretion to appoint counsel for an indigent petitioner in any case where required by the interests of justice. 28 U.S.C. § 2254(h); 18 U.S.C. § 3006A(a)(2)(B). Whether counsel should be appointed turns on a petitioner's ability to articulate his claims in light of the complexity of the legal issues and his likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

To date, Petitioner has demonstrated that he can protect his interests in this habeas corpus action. His pleadings and papers, including his responses to the State's motions, are well-organized and appropriate. A review of the record does not show a high likelihood of success on the merits, given the narrow standard of relief in 28 U.S.C. § 2254(d). In addition, prior to reaching the merits, the Court must address a simple, narrow procedural issue, for which appointment of counsel is not required.

The Court is aware that inmates have few legal resources. The Court independently reviews the case citations and references provided by the State for accuracy and applicability, and also does its own research to determine whether other cases not cited by the State apply. The appellate review process is available to ensure that the case has been adjudicated according to the proper legal standards. Petitioner's inability to more fully litigate his claims are "incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. at 355. Appointment of counsel is not warranted on Petitioner's argument that he lacks additional legal resources.

Because appointment of counsel would not benefit the Court in the decisionmaking process, the Court will deny Petitioner's second request ...


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