Nichols v. Hobbs
ORDER denying 16 Motion for Order; denying 18 Motion for Order; denying 23 Motion for Order; denying 25 Motion for Relief; denying 29 Motion to Appoint Counsel; denying 29 Motion to Appoint Counsel ; denying 30 Motion for Prelimin ary Injunction; denying 30 Motion for TRO; denying 32 Motion for Order to Show Cause 33 Motion to Appoint Counsel ; denying 39 Motion for TRO; and denying 39 Motion for Preliminary Injunction. Signed by Magistrate Judge J. Thomas Ray on 01/03/2013. (kcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JOHNNY LEE NICHOLS
RAY HOBBS, Director,
Arkansas Department of Correction
Petitioner has filed a number of Motions in this § 2254 habeas case. First,
Petitioner requests the issuance of subpoenas to identify “every inmate [in the ADC]
that is affected by Act 1034 of 2005, the 70%/50% law.” (Docket entries #16,#18,
#23). Petitioner has made no showing of the relevance of this information to his
habeas case.1 Thus, his Motions requesting discovery will be denied.
Second, Petitioner has filed Motions requesting injunctive relief to remedy
various complaints about his conditions of confinement and allegations of inadequate
Pursuant to Rule 6(a) of the Rules Governing § 2254 cases, the Court may, for
“good cause,” authorize a party to conduct discovery pursuant to the Federal Rules of
Civil Procedure. See also Bracy v. Gramley, 520 U.S. 899, 904-09 (1997) (“A habeas
petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery
as a matter of ordinary course”; instead, the petitioner must first demonstrate “good
cause” before obtaining the court’s permission to engage in discovery).
medical care. (Docket entries #25, #30, #32 and #39). Those 42 U.S.C. § 1983 claims
are not cognizable in a habeas action under 28 U.S.C. § 2254. See, e.g., Williams v.
Hopkins, 130 F.3d 333, 335-36 (8th Cir. 1997) (challenges “to the conditions of
confinement” must be brought in a civil rights action filed pursuant to a 42 U.S.C. §
1983 action, while challenges “to the fact or duration of a sentence of imprisonment”
must be brought in a § 2254 habeas action); see also Kane v. Garcia Espitia, 546 U.S.
9 (2005) (per curiam) (denial of access to a law library cannot provide a basis for
habeas relief). If Petitioner wishes to pursue those claims, he should file an
appropriate § 1983 action.
Finally, Petitioner requests the appointment of counsel. (Docket entries #29
and #33). After careful consideration, the Court concludes that the factual and legal
issues presented in this non-capital habeas case are not complex, and that Petitioner
has demonstrated his ability to investigate and articulate his claims.2 Accordingly, the
Motions for Appointment of Counsel will be denied.
IT IS THEREFORE ORDERED THAT:
Petitioner’s “Motion to Join/Subpoena” (docket entry #16), “Motion for
It is well settled that a habeas petitioner in a non-capital case does not have a
constitutional or statutory right to counsel. Morris v. Dormire, 217 F.3d 556, 558 (8th
Cir. 2000); McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). Instead, the Court
may, in its discretion, appoint counsel if: (1) the habeas action is factually or legally
complex; or (2) the petitioner is unable to investigate or articulate his claims without
court-appointed counsel. Morris, 217 F.3d at 558; McCall, 114 F.3d at 756.
Special Requests” (docket entry #18), and “Motion for Order to Subpoena” (docket
entry #23) are DENIED.
Petitioner’s “Motions to Show Cause for an Injunction” (docket entries
#25, #30, #32, and #39) are DENIED.
Petitioner’s Motions for Appointment of Counsel (docket entries #29 and
#33) are DENIED.
Dated this 3rd day of January, 2013.
UNITED STATES MAGISTRATE JUDGE
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