Lucy v. State Of Alabama et al

Filing 26

ORDER GRANTING 24 Motion for Reconsideration. 25 Motion to Appoint Counsel is DENIED AND STRICKEN as set out. Signed by Magistrate Judge P. Bradley Murray on 09/25/2018. (srd) Copy to Petitioner.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM N. LUCY,
AIS 204880,

:
:

Petitioner,
:
vs.

CA 18-0218-WS-MU
:

WARDEN MARY COOKS,
:
Respondent.
ORDER
This action is back before the undersigned on Petitioner’s motion to reconsider his
motion to compel production (Doc. 24) and his motion for appointment of counsel (Doc.
25).
The motion to reconsider (Doc. 24) is GRANTED; however, the undersigned’s
ruling denying the motion to compel production (see Doc. 23) remains UNCHANGED.
Lucy premises his motion for reconsideration on the following language contained in the
Court’s Order dated June 14, 2018 (see Doc. 14, at 3), which was also referenced in the
Order denying the motion to compel production (Doc. 23, at 1): “Moreover, where
Petitioner alleges ineffective assistance of counsel or insufficiency of the evidence, the
entire trial record must be filed.” (Doc. 14, at 3; see also Doc. 23, at 1.) Initially, the Court
notes the unhelpfulness of this language to Petitioner’s position, given that he makes no
claims of ineffective assistance of counsel or insufficiency of the evidence in his habeas

corpus petition (see Doc. 12). More importantly, the undersigned simply makes explicit
that which should be clear from a reading of the Order denying the motion to compel
production (see Doc. 23), and that is the entire trial record with respect to Lucy’s
underlying state criminal conviction (for offering a false instrument for recording against a
public servant, in violation of Ala.Code § 13A-9-12(c)—CC 13-05332), which he is
collaterally attacking in this Court, was filed with this Court (compare id. with Doc. 20,
Attached Exhibits and Doc. 14, at 3). The Order denying Petitioner’s motion to compel
(Doc. 23) was PROPER.
Turning to Petitioner’s motion for appointment of counsel (Doc. 25), the
undersigned would observe that this motion contains no completed certificate of service
indicating that the attorney representing the Respondent was served with a copy of the
motion. (See id., at 1.) It is, therefore, ORDERED that the motion be STRICKEN.
Fed.R.Civ.P. 5(d)(1) (“Any paper after the complaint that is required to be
served—together with a certificate of service—must be filed within a reasonable time
after service.”); cf. S.D. Ala. GenLR 83.5(a) (“All persons proceeding pro se shall be
bound by, and must comply with, all Local Rules of this Court, as well as the Federal
Rules of Civil and Criminal Procedure, unless excused by Court order.”). Additionally,
this motion is properly DENIED for the reasons set out below.
In support of his request for appointment of counsel, Lucy cites to § 15-12-23 of
the Alabama Code and argues that his “rights cannot be adequately protected without
counsel who can assist [him] in these proceedings[,]” as he is “uneducated and the[]

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proceedings are complex.” (Doc. 25, at 1; see also id. (“Appointment of counsel would
not only aid Petitioner but the Court and Respondent as well.”)).
“In federal habeas proceedings, appointment of counsel prior to an evidentiary
hearing is necessary only when due process or the ‘interests of justice’ require it.”
McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir.) (citations omitted), cert. denied, 513
U.S. 990, 115 S.Ct. 489, 130 L.Ed.2d 401 (1994);1 cf. Crawford v. United States, 2010
WL 1978259, *1 (N.D. Ga. May 14, 2010) (“In collateral proceedings challenging a
conviction, appointment of counsel is necessary only when due process or ‘the interests
of justice’ require it.”); United States v. Hernandez, 2008 WL 4559103, *1 (S.D. Fla. Oct.
10, 2008) (“Situations where appointment of counsel for § 2255 cases is very rare, and
such appointment is typically reserved for truly complex and legally subtle cases[.]”).
A preliminary evaluation of the claims asserted by petitioner has neither revealed
that the issues are too complex for him to handle on his own, as he claims, or that due
process or the “interests of justice” otherwise require appointment of counsel is
necessary at this stage in the proceedings. Accordingly, petitioner’s motion for
appointment of counsel (Doc. 25) is DENIED. As previously indicated, however, if the
undersigned later determines that an evidentiary hearing is required, counsel will be
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“If an evidentiary hearing is warranted, the judge must appoint an attorney to
represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” 28
U.S.C. foll. § 2254, Rule 8(c); compare id. with 18 U.S.C. § 3006A(a)(2)(B) (“Whenever the
United States magistrate judge or the court determines that the interests of justice so require,
representation may be provided for any financially eligible person who—is seeking relief under
section 2241, 2254, or 2255 of title 28.”). Section 15-12-23 of the Alabama Code plays no part in
this Court’s analysis of whether appointment of counsel is appropriate in a federal habeas corpus
action.

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appointed to represent the Petitioner. See 28 U.S.C. foll. § 2254, Rule 8(c).
DONE and ORDERED this the 25th day of September, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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