United States District Court, D. Alaska
ORDER [RE: MOTION AT DOCKET NO. 2 AND DIRECTING
SERVICE AND RESPONSE]
JAMES
K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE.
On
August 13, 2019, Patrick L. Shorty, a state prisoner
proceeding pro se, filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254
(“Petition”). Docket No. 1. Shorty challenges the
judgment of conviction following a jury trial entered by the
Superior Court for the State of Alaska, Case Number
3AN-03-7796CR. Id. at 1. Shorty contends that his
conviction should be overturned because it was obtained
through an unlawful arrest and unconstitutional search and
seizure, and his trial, appellate, and post-conviction relief
counsel rendered ineffective assistance. Id. at 5.
Shorty asserts that the grounds for relief raised in his
Petition have been brought in the Alaska state courts,
including the Alaska Supreme Court, as required by §
2254(b). Docket No. 1 at 5-6.
Pursuant
to the Rules Governing Section 2254 Cases, the Court must
review the Petition to determine whether “it plainly
appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.” Rules Governing § 2254 Cases,
Rule 4. See 28 U.S.C. § 2243. After a
preliminary review, it does not plainly appear from his
Petition that Shorty is not entitled to relief.[1]
Shorty
concurrently moves for the appointment of counsel to assist
him in these proceedings. Docket No. 2. While this Court is
not unmindful of the plight of unrepresented state prisoners
in federal habeas proceedings, there is no constitutional
right to counsel in federal habeas proceedings. See
Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing
Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)).
Appointment of counsel is not required in a habeas corpus
proceeding in the absence of an order granting discovery or
an evidentiary hearing. See Rules Governing Section
2254 Cases in the U.S. District Courts, Rule 6(a), 8(c). This
Court may under the Criminal Justice Act appoint counsel in
this case if it determines that the interests of justice so
require. 28 U.S.C. § 2254(h); 18 U.S.C. §
3006A(a)(2)(B); see Weygandt v. Look, 718 F.2d 952,
954 (9th Cir. 1983) (“In deciding whether to appoint
counsel in a habeas proceeding, the district court must
evaluate the likelihood of success on the merits as well as
the ability of the petitioner to articulate his claims
pro se in light of the complexity of the legal
issues involved.”).
At this
time, Shorty's request for counsel is premature. The
Court cannot determine whether appointment of counsel is
warranted in this case until it is able to thoroughly review
the briefing in its entirety. The Court will therefore deny,
without prejudice to renew, Shorty's motion for
appointment of counsel. The Court will not reconsider a
motion to appoint counsel until it has thoroughly reviewed
Respondent's answer to the Petition.
IT
IS THEREFORE ORDERED:
1. The
motion at Docket No. 2 for appointment of counsel pursuant to
18 U.S.C. § 3006A is DENIED WITHOUT
PREJUDICE.
2. The
Clerk of the Court is directed to serve this order and the
Petition at Docket No. 1 on:
Tamara DeLucia Office of Criminal Appeals 1031 W.
4th Ave, Suite 200 Anchorage, Alaska 99501
3. By
agreement between the Court and the Office of Criminal
Appeals, the Office of Criminal Appeals will accept service
on behalf of the Respondent.[2] Once an attorney is
assigned to this case by the Office of Criminal Appeals, that
attorney shall immediately-and in no more than fourteen (14)
days from the date of this order-file a notice of
appearance.
4.
Respondent shall file and serve either an answer or a motion
in response to the Petition within sixty (60) days from the
date of this Order. See Rule 4, Rules Governing
§ 2254 Cases. The Court also notes its preference that
procedural issues be addressed concurrently with the merits
of the habeas petition. Any response shall be accompanied by
any and all transcripts or other documents relevant to the
determination of the issues presented in the application.
See Rules 4 and 5, Rules Governing § 2254
Cases. This should include a copy of:
(1) any brief that the Petitioner submitted in an appellate
court contesting the conviction or sentence, or contesting an
adverse judgment or order in a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate
court relating to the conviction or sentence; and
(3) the opinions and dispositive orders of the state
appellate courts relative to the ...