White v. State of Alabama (The) et al

Filing 16

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 9/17/2015. (PSM)

FILED
2015 Sep-17 PM 03:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHRISTOPHER LEMONE WHITE,
Petitioner,
v.
STATE OF ALABAMA, et al.,
Respondents.

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Case No.: 2:12-cv-02960-LSC-SGC

MEMORANDUM OPINION
On August 26, 2015, the magistrate judge entered a report recommending
Christopher Lemone White’s petition for a writ of habeas corpus brought pursuant
to 28 U.S.C. § 2254 be denied as barred by the applicable statute of limitations.
(Doc. 13). In accordance with Rule 11 of the Rules Governing Section 2254
Proceedings, the magistrate judge also recommended a certificate of appealability
be denied. (Id.). The magistrate judge gave White fourteen (14) days to file
specific written objections to her report and recommendation. (Id.). On September
14, 2015, White filed a motion requesting appointment of counsel (Doc. 14) and a
motion for an extension of time to file objections to the report and recommendation
(Doc. 15).
White does not articulate any reason why he requires appointment of an
attorney. (See Doc. 14). There is no constitutional right to appointment of counsel
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in a post-conviction proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555
(1987) (“[T]he right to appointed counsel extends to the first appeal of right, and
no further.”). “In most federal courts, it is the practice to appoint counsel in postconviction proceedings only after a petition for post-conviction relief passes initial
judicial evaluation and the court has determined that issues are presented calling
for an evidentiary hearing.” Johnson v. Avery, 393 U.S. 483, 487 (1969). The
Criminal Justice Act of 1964 authorizes discretionary appointment of counsel at
public expense to an indigent defendant in a post-conviction proceeding under 28
U.S.C. §§ 2241, 2254, or 2255 prior to an evidentiary hearing whenever the court
determines “that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
However, where a defendant seeks appointment of counsel in a federal postconviction proceeding prior to an evidentiary hearing, courts generally decline to
grant the request unless it appears (1) the defendant has presented a constitutional
claim with at least a fair likelihood of success on the merits, (2) the claim is
factually complex and legally intricate, and (3) the facts are largely
underdeveloped and the defendant, due to his incarceration and indigency, is
severely hampered in his ability to investigate them. See United States v. Mala, 7
F.3d 1058, 1064 (1st Cir. 1993)).

Neither these nor other exceptional

circumstances that might warrant appointment of counsel exist here. See Goodman
v. Meko, 861 F.2d 1259, 1260 (11th Cir. 1988) (finding no exceptional
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circumstances that warranted appointment of counsel in federal habeas proceeding,
court denied petitioner’s motion for appointment of counsel). White’s § 2254
petition is clearly time-barred. Therefore, White’s motion requesting appointment
of counsel (Doc. 14) is DENIED.
Likewise, White does not articulate any reason why he requires an extension
of time to file objections to the report and recommendation.

(See Doc. 15).

Because White’s § 2254 petition is clearly time-barred, any extension would be
futile. Therefore, White’s motion for an extension of time to file objections to the
report and recommendation (Doc. 15) is DENIED.
After careful consideration of the record in this case and the magistrate
judge’s report, the court ADOPTS that report and ACCEPTS the magistrate
judge’s recommendations. Accordingly, White’s § 2254 petition is due to be
DENIED as barred by the applicable statute of limitations. Furthermore, for the
reasons set forth in the report and recommendation and pursuant to Rule 11 of the
Rules Governing Section 2254 Proceedings, a certificate of appealability is
DENIED.
A final judgment will be entered.

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DONE and ORDERED on September 17, 2015.

_____________________________
L. Scott Coogler
United States District Judge
160704

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