Long v. Culliver et al (INMATE2)

Filing 3

ORDER denying 1 Motion to Appoint Counsel, as further set out in order . Signed by Judge Wallace Capel Jr. on 2/23/07. (djy, )

Long v. Culliver et al (INMATE2)

Doc. 3

Case 2:07-cv-00156-WKW-WC

Document 3

Filed 02/23/2007

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ D A V ID LEE LONG, #204 928 P e t i t io n e r , v. GRANT CULLIVER, WARDEN, e t al., R e s p o n d e n ts . _____________________________ * * * * * 2:07-CV-156-WKW (WO)

O R D E R ON MOTION This case was instituted following Petitioner's filing of a request for appointment of c o u n se l prior to the filing of a § 2254 petition. In support of his motion, Petitioner states that th e Anti-Drug Abuse Act of 1988 mandates appointment of counsel for all indigent capital p ris o n e rs seeking habeas corpus or other federal post-conviction relief. Petitioner also cites to McFarland v. Scott, 512 U.S. 849 (1994) wherein the Supreme Court held that "the la n g u a g e and purposes of [21 U.S.C. ] § 848(q)(4)(B) [repealed] and its related provisions e sta b lis h that the right to appointed counsel includes a right to legal assistance in the p re p a ra tio n of a habeas corpus application. We therefore conclude that a `post conviction p ro c e ed in g ' within the meaning of § 848(q)(4)(B) is commenced by the filing of a death row d e f en d a n t's motion requesting the appointment of counsel for his federal habeas corpus p ro c e ed in g ." Id. at 855-57. T h e court takes judicial notice of its own records which reflect that Petitioner is s e rv in g a sentence of life without the possibility of parole as a result of his convictions for

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Case 2:07-cv-00156-WKW-WC

Document 3

Filed 02/23/2007

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capital murder in violation of Ala. Code § 13A-5-40(a)(17) and attempted murder in v iolatio n of Ala. Code § 13A-4-2 entered against him by the Circuit Court for Montgomery C o u n ty, Alabama. See Long v. Bullard, Civil Action No. 2:02-CV-561-MHT (M.D. Ala. 2 0 0 4 ). Petitioner is not subject to a death sentence. He is not entitled to appointment of c o u n se l in a § 2254 proceeding. The provisions of 28 U.S.C. § 2261govern the appointment o f counsel to prisoners in State custody subject to a sentence of death. In light of the f o re g o in g , Petitioner's motion is due to be denied. A c c o r d in g ly, it is ORDERED that Petitioner's Motion for Appointment of Counsel (Doc. No. 1) be and is hereby DENIED. D o n e , this 23 r d day of February 2007.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE