Wade v. Norris
ORDER denying Motion for Certificate of Appealability; denying 15 Motion to Appoint Counsel; denying Request to Proceed on Appeal In Forma Pauperis. Signed by Magistrate Judge Beth Deere on 5/3/10. (dac)
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION D E T R I A W N R. WADE A D C #137948 v. CASE NO.: 5:09CV00222 BD P E T IT IO N E R
R A Y HOBBS, Interim Director, A r k a n s a s Department of Correction ORDER
R ESPON D EN T
O n April 7, 2010, this Court denied Petitioner's application for a writ of habeas c o rp u s under 28 U.S.C. § 2254. Now pending are Petitioner's motion for certificate of a p p e a la b ility ("COA") (docket entry #14),1 motion for leave to appeal in forma pauperis (# 1 4 and #15),2 and motion to appoint counsel on appeal (#15). For the following re a s o n s , these motions are DENIED. T itle 28 U.S.C. § 2253 limits the right of appeal in habeas corpus proceedings w h e n the petitioner's detention arises out of process issued by a State court. 28 U.S.C. § 2253(c)(1)(A); Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 1603 (2000). The Court may issue a COA only if a petitioner has made a "substantial showing of the d e n ia l of a constitutional right." 28 U.S.C. § 2253(c)(2). The Court of Appeals for the E ig h th Circuit has held this to be a "modest standard." Randolph v. Kemna, 276 F.3d
The motion for certificate of appealability is part of Petitioner's notice of appeal
(# 1 4 ). Petitioner requests leave to appeal in forma pauperis in both his notice of appeal (# 1 4 ) and his motion to appoint counsel on appeal (#15).
401, 403 n. 1 (8th Cir. 2002) (quoting Charles v. Hickman, 228 F.3d 981, 982 n. 1 (9th C ir. 2000)). In this case, the Petitioner has not made a substantial showing and, in fact, has not m a d e even a modest showing, that he was deprived of a Constitutional right. The Court d id not reach the merits of his petition because he procedurally defaulted his claims (#11). He did not address the issue of procedural default in his Motion for COA. Because P e titio n e r has failed to present a basis for the Court to issue a certificate of appealability, h is motion for certificate of appealability (#14) is denied. P e titio n e r requests in forma pauperis status on appeal in both his notice of appeal a n d in his motion to appoint counsel on appeal (#14 and #15). However, he did not s u b m it documentation required by 28 U.S.C. § 1915, to qualify for in forma pauperis s ta tu s . Accordingly, Petitioner's requests to proceed in forma pauperis are denied. Regarding appointment of counsel, there is neither a constitutional nor statutory rig h t to counsel in habeas proceedings. Instead, the decision to appoint counsel is c o m m itte d to the discretion of the trial court. Morris v. Dormire, 217 F.3d 556, 558-59 (8 th Cir. 2000); McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997); see also Rule 8(c), Rules Governing § 2254 Cases in United States District Courts; 18 U.S.C. § 3006A(a)(2) (" c o u n s e l may be appointed when the interests of justice so require"). Appointing c o u n s e l in this appeal would not further the interests of justice. Accordingly, Petitioner's m o tio n to appoint counsel on appeal (#15) is denied.
IT IS SO ORDERED, this 3rd day of May, 2010.
___________________________________ U N IT E D STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?