McKee v. Payne

Filing 90

ORDER denying as moot 80 and 81 Motions for Certificate of Appealability; denying 82 Motion to Appoint Counsel. Now that a notice of appeal has been filed and the Court has issued rulings upon the motions for certificate of appealability and to appoint counsel, Mr. McKee may refile these motions with the Eighth Circuit Court of Appeals. Signed by Chief Judge Kristine G. Baker on 8/28/2024. (fcd)

THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
JERRY MCKEE
ADC #174370
v.

PETITIONER

Case No. 4:21-cv-00910-KGB

DEXTER PAYNE, Director,
Arkansas Division of Correction

RESPONDENT

ORDER
Before the Court are plaintiff Jerry McKee’s motions for a certificate of appealability (Dkt.
Nos. 80; 81) and Mr. McKee’s motion for appointment of counsel and/or investigators (Dkt. No.
82). The Court will first address Mr. McKee’s motions for certificate of appealability and then
Mr. McKee’s motion for appointment of counsel and/or investigators.
I.

Motions For Certificate Of Appealability

First, the Court addresses Mr. McKee’s motions for certificate of appealability (Dkt. Nos.
80; 81). On September 28, 2023, the Court entered a Judgment in this matter dismissing with
prejudice Mr. McKee’s petition for a writ of habeas corpus and declining to issue a certificate of
appealability (Dkt. No. 76). On November 7, 2023, Mr. McKee filed a motion requesting more
time to file a motion for a certificate of appeal and notice for an appeal (Dkt. No. 77). On
November 13, 2023, the Court denied Mr. McKee’s motion requesting more time to file a motion
for a certificate of appeal and notice for an appeal and informed him that he may refile his motion
for a certificate of appealability with the Eighth Circuit Court of Appeals (Dkt. No. 78, at 2).
On December 18, 2023, the Eighth Circuit Court of Appeals received a filing from Mr.
McKee that was titled as a “notice of appeal” (Dkt. No. 79). The content of the filing requests a
certificate of appealability (Id.). The Clerk of Court for the Eighth Circuit construed that document

as a notice of appeal, forwarded it to this Court, and directed the Clerk of Court to file it as received
on December 18, 2023 (Id., at 2). On December 26, 2023, the Eighth Circuit received another
filing from Mr. McKee that is titled motion/petition for a certificate of appealability with brief and
motion for expansion of the record with discovery (Dkt. No. 81). The Eighth Circuit construed
this document as a notice of appeal, forwarded the filing to this Court, and directed the Clerk of
Court to file it as received on December 26, 2023 (Id., at 11).
On December 27, 2023, this Court received Mr. McKee’s first filing made in the Eighth
Circuit (Dkt. Nos. 79; 80). The Clerk of Court filed this document using two docket entries, one
noting it as a notice of appeal (Dkt. No. 79) and one noting it as a motion for certificate of
appealability (Dkt. No. 80). On January 3, 2024, this Court received Mr. McKee’s second filing
made in the Eighth Circuit (Dkt. No. 81). The Clerk of Court filed the document as a motion for
certificate of appealability (Id.).
“A document filed pro se is ‘to be liberally construed . . . .’” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The Clerk of Court for the
Eighth Circuit Court of Appeals construed the first filing it received from Mr. McKee as a notice
of appeal, and this Court agrees (Dkt. No. 79, at 2). The Court joins the Clerk of Court for the
Eighth Circuit in its understanding that this document constitutes a notice of appeal in this matter
(Id.). In addition, the Court also understands this document to constitute a motion for certificate
of appealability (Dkt. No. 80). The Court understands the second filing Mr. McKee sent to the
Eighth Circuit to constitute a motion for certificate of appealability as well (Dkt. No. 81).
The Court understands that Mr. McKee sought to make his motion for a certificate of
appealability in the Eighth Circuit Court of Appeals pursuant to Federal Rule of Appellate
Procedure 22(b), as instructed in this Court’s previous Order (Dkt. No. 78). However, Mr.

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McKee’s filings with the Eighth Circuit were forwarded to this Court because he had not yet filed
a notice of appeal in this Court. Therefore, the Court will rule on Mr. McKee’s motions for
certificate of appealability insofar as they are made in this Court (Dkt. Nos. 80; 81). Given that
the Court has already declined to issue a certificate of appealability to Mr. McKee (Dkt. Nos. 75,
at 3; 76), the Court denies Mr. McKee’s motions for certificate of appealability (Dkt. Nos. 80; 81).
Now that a notice of appeal has been filed in this Court (Dkt. No. 79) and the motions for
certificate of appealability filed in this Court have been addressed (Dkt. Nos. 80; 81), the Eighth
Circuit Court of Appeals will have official notice of Mr. McKee’s appeal. The Court directs Mr.
McKee to refile his motions for certificate of appealability with the Eighth Circuit Court of
Appeals pursuant to Federal Rule of Appellate Procedure 22(b).
II.

Motion to Appoint Counsel

Second, the Court addresses Mr. McKee’s motion for appointment of counsel and/or
investigators, which the Court understands as a motion to appoint counsel (Dkt. No. 82). Mr.
McKee states that he is indigent, has no competent assistance with this matter, and “will never get
out of prison without help from somebody outside.” (Id.). Further, Mr. McKee states that if he is
“allowed to have help[,] the stuff [he] has written from Doc. 1 thru Doc. 74 can be proven . . . .”
(Id.). Mr. McKee has previously stated that he has less than a seventh-grade education and that
“[t]rying to figure out how to understand law without help is kinda [sic] like trying to jump over
the moon without a rocket.” (Dkt. No. 81, at 1). Based on the “received” stamp applied by the
Eighth Circuit, the Court also understands that Mr. McKee originally sent this motion to the Eighth
Circuit.
“[T]here is neither a constitutional nor statutory right to counsel in habeas proceedings;
instead, it is committed to the discretion of the trial court.” McCall v. Benson, 114 F.3d 754, 756

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(8th Cir. 1997) (citing Pennsylvania v. Finley, 481 U.S. 551, 555–57 (1987); Williams v. Missouri,
640 F.2d 140, 144 (8th Cir. 1981)). District courts “may appoint counsel for a habeas petitioner
when ‘the interests of justice so require.’” Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994)
(quoting Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.1994); citing 18 U.S.C. § 3006A(a)(2))).
The interests of justice require that a court appoint counsel if there is an evidentiary hearing related
to the habeas petition. Id. (citing Abdullah, 18 F.3d at 573). In considering a motion to appoint
counsel, the Court should analyze: (1) “the legal complexity of the case,” (2) “the factual
complexity of the case,” (3) “the petitioner’s ability to investigate and present his claims,” and (4)
“any other relevant factors.” Id.
The Court understands Mr. McKee in his motion to request counsel on appeal because this
Court has already denied Mr. McKee’s petition (Dkt. No. 75) and Mr. McKee originally sent his
motion to the Eighth Circuit (Dkt. No. 82). However, because the motion was forwarded to this
Court by the Eighth Circuit, the Court will address the motion as if it were made in this Court.
The Court held no evidentiary hearing in this matter and denied with prejudice Mr.
McKee’s habeas petition (Dkt. No. 75, at 7–8). Therefore, the interests of justice do not explicitly
require the appointment of counsel. The Court denied without prejudice Mr. McKee’s previous
motions to appoint counsel (Dkt. No. 32, at 2–3). At that point in the litigation, the Court found
that neither Mr. McKee nor the Court would benefit from counsel being appointed, Mr. McKee’s
claims do not appear legally or factually complex, and Mr. McKee’s filings to date indicate that
he is capable of prosecuting his claims without appointed counsel (Id., at 3). The Court maintains
those determinations at this point in the litigation and denies Mr. McKee’s motion to appoint
counsel insofar as it was made in this Court (Dkt. No. 82). Mr. McKee may refile his motion to
appoint counsel with the Eighth Circuit Court of Appeals.

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III.

Conclusion

Based on the foregoing, the Court denies as moot McKee’s motions for a certificate of
appealability (Dkt. Nos. 80; 81) and denies Mr. McKee’s motion for appointment of counsel and/or
investigators, which the Court understands as a motion to appoint counsel (Dkt. No. 82). The
Court understands that Mr. McKee originally meant to file these documents with the Eighth Circuit
Court of Appeals, but because there was no notice of appeal in this case, these motions were
forwarded from the Eighth Circuit to this Court. Now that a notice of appeal has been filed and
the Court has issued rulings upon the motions for certificate of appealability and to appoint
counsel, Mr. McKee may refile these motions with the Eighth Circuit Court of Appeals.
It is so ordered this 28th day of August, 2024.

__________________________________
Kristine G. Baker
Chief United States District Judge

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