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Shorty v. Houser

United States District Court, D. Alaska

August 28, 2019

EARL L. HOUSER, Superintendent III, Goose Creek Correctional Center, Respondent.



         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.


         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 ...

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