govinfo:USCOURTS-casd-3_25-cv-01640-1

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
JOSE ALFREDO SUAREZ, 
Petitioner, 
v. 
SMITH, et al., 
Respondents. 

 
ORDER: 
 
(1) DENYING REQUEST TO 
APPOINT COUNSEL; and 
 
(2) MODIFYING BRIEFING 
SCHEDULE. 
 
[Doc. No. 30] 
 
 
On June 8, 2026, Jose Alfredo Suarez (“Petitioner”) filed a motion to extend the time 
to file a second amended petition and for appointment of counsel. [Doc. No. 30.] For the 
reasons stated below, the Court DENIES Petitioner’s request for the Court to appoint 
counsel and GRANTS the motion to extend the deadline to file a second amended petition. 
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I. BACKGROUND 
On June 26, 2025, Petitioner, proceeding pro se, filed a petition for a writ of habeas 
corpus under 28 U.S.C. §2254. [Doc. No. 1.] Petitioner later filed a motion to proceed in 
forma pauperis (“IFP”), [Doc. No. 4], which the Court granted, [Doc. No. 7]. The Court 
then stayed the case until Petitioner’s state court proceedings concluded. [Doc. No. 18.] 
Petitioner filed an amended petition during the stay, [Doc. No. 21], and the Court dismissed 
the amended petition due to the stay, [Doc. No. 22] . Once Petitioner’s state court 
proceedings concluded, the Court lifted the stay and issued a briefing schedule. [Doc. No. 
28.] 
Petitioner now asks the Court to appoint counsel because his current p etition is 
meritorious, he wishes to file an amended petition , he currently lacks access to his legal 
property, and providing him an attorney will better serve this Court. [Doc. No. 30 at 1–2.] 
II. LEGAL STANDARD 
“[T]here is no absolute right to counsel in civil proceedings.” Hedges v. Resol. Tr. 
Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). However, the Court has discretion to appoint 
an attorney to represent indigent civil litigants upon a showing of “exceptional 
circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “That a pro se 
litigant may be better served with the assistance of counsel is not the test.” Okler v. MCC 
IMU Prison, No. 3:18-cv-05458-RJB-TLF, 2019 WL 461143, at *1 (W.D. Wash. F eb. 5, 
2019). Instead, the Court “must determine whether a) there is a likelihood of success on 
the merits; and b) the [litigant] is unable to articulate his claims in light of the complexity 
of the legal issues involved.” Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). Neither 
factor “is dispositive; rather they must be considered cumulatively.” Id. 
III. DISCUSSION 
A. Likelihood of Success 
Petitioner has stated he plans to file a second amended petition so the Court cannot 
predict Petitioner’s likelihood of success on any claims to be filed. See Campos v. K.U.S.I. 
News Media, No. 3:19-cv-01455-BAS-AGS, 2019 WL 4674290, at *2 (S.D. Cal. Sept. 24, 
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2019) (denying motion to appoint counsel in part because it was “simply too soon to tell 
whether he will be likely to succeed on the merits of any potential constitutional claim”). 
The Court therefore finds that this factor weighs against the appointment of counsel. 
B. Petitioner’s Ability to Pursue His Claims 
Petitioner argues that the Court should appoint him an attorney because he does not 
have access to his legal property due to transfers in the state prison system. [Doc. No. 30 
at 4.] “Every pro se prisoner’s ability to litigate a case is hampered to some extent by their 
indigency and incarceration.” Char v. Tresch, No. CV 23- 00402 DKW-WRP, 2023 WL 
6466379, at *2 (D. Haw. Oct. 4, 2023). Petitioner has demonstrated in his previous filings 
that he is capable of doing legal research, presenting arguments in writing, and 
understanding the issues in his case. Although Petitioner’s recent transfers to different 
facilities in the state prison system have made it difficult for him to access his legal 
property, this problem can be cured by allowing Petitioner additional time to submit his 
filings. The Court therefore finds that this factor also weighs against the appointment of 
counsel. 
IV. CONCLUSION 
For the reasons stated above, Petitioner’s motion to appoint counsel is DENIED 
WITHOUT PREJUDICE. Petitioner may renew his request if his situation changes such 
that he can make the necessary showing that he is both likely to succeed on the merits of 
his claims and unable to competently articulate those claims. 
Further, for good cause shown, the Court GRANTS the motion to extend the time 
for Petitioner to file an amended petition and modifies the briefing schedule as follows: 
(1) Petitioner may file a second amended petition by August 5, 2026. 
(2) Respondents shall file a response to the second amended petition, or if no 
second amended petition is filed, to the original petition, [Doc. No. 1], by 
September 2, 2026. 
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(3) Petitioner may file a reply to Respondents’ response by September 30, 2026. 
It is SO ORDERED. 
Dated: June 16, 2026 
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