Wade v. Norris

Filing 16

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)

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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 1 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). 2 401, 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. 2 IT IS SO ORDERED, this 3rd day of May, 2010. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 3

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