Aguilar v. Tamme, et al

Filing 33

ORDER: Applicant's renewed motion for a stay (ECF No. 29 ) and motion forappointment of counsel (ECF No. 31 ) are DENIED. Applicant's motion for an extension of time (ECF No. 30 ) is GRANTED and Applicant shall have up to and including 11/1/2013, to file a reply to Respondents' Answer to Application. By Chief Judge Marcia S. Krieger on 9/25/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00494-MSK
ANTONIO AGUILAR,
Applicant,
v.
RAE TAMME, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER

This matter is before the Court on three motions filed by Applicant Antonio Aguilar on
September 19, 2013. In a motion captioned “Stay/Dismissal” (ECF No. 29), Mr Aguilar renews
his request to stay this habeas corpus action so that he may return to state court to exhaust state
remedies for unspecified claims. The other two motions are a motion for an extension of time
(ECF No. 30) to file a reply to Respondents’ Answer to Application (ECF No. 28) and a motion
for appointment of counsel (ECF No. 31).
The operative pleading in this action is an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 7) (“the Application”) in which Mr. Aguilar challenges
the validity of his state court criminal conviction and sentence. On August 28, 2013, the Court
entered an Order to Dismiss in Part (ECF No. 25) in which the Court denied Mr. Aguilar’s
amended motion for a stay, dismissed four of Mr. Aguilar’s nine claims in the Application as
procedurally barred, directed Respondents to file an answer that fully addresses the merits of Mr.
Aguilar’s remaining claims, and directed Mr. Aguilar to file any reply to the answer within thirty

days after the answer is filed. Respondents filed their Answer to Application on September 12,
2013.
Mr. Aguilar’s renewed motion for a stay will be denied for the same reasons specified in
the Order to Dismiss in Part. It still is not clear that a stay is necessary because Mr. Aguilar does
not identify the claims he intends to exhaust. In addition, even assuming Mr. Aguilar does
intend to pursue a claim that is not exhausted, he still fails to demonstrate good cause for failing
to exhaust state remedies prior to filing this action or that any unexhausted claim potentially is
meritorious. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
The Court next will address Mr. Aguilar’s motion for appointment of counsel. The Court
notes initially that “[t]here is no constitutional right to counsel beyond the direct appeal of a
criminal conviction.” Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008). Furthermore,
decisions regarding appointment of counsel in habeas corpus proceedings generally are “left to
the court’s discretion.” Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332,
333 (10th Cir. 1994). “However, there is a right to counsel in a habeas case when the district
court determines that an evidentiary hearing is required.” Id. More specifically, Rule 8(c) of the
Rules Governing Section 2254 Cases in the United States District Courts provides that “[i]f 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.”
The Court has made no determination regarding whether an evidentiary hearing is
warranted in this action. Therefore, Mr. Aguilar is not entitled to appointment of counsel and the
Court exercises its discretion in considering his motion for appointment of counsel.
The Court is not persuaded that appointment of counsel is necessary in the interests of

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justice at this stage of the proceedings. It does not appear that the remaining claims in this action
are complex or that Mr. Aguilar lacks the ability to express his position with respect to those
claims. Therefore, Mr. Aguilar’s motion for appointment of counsel will be denied.
Finally, the Court will grant Mr. Aguilar an extension of time to file a reply to
Respondents’ Answer to Application. Accordingly, it is
ORDERED that Applicant’s renewed motion for a stay (ECF No. 29) and motion for
appointment of counsel (ECF No. 31) are DENIED. It is further
ORDERED that Applicant’s motion for an extension of time (ECF No. 30) is
GRANTED and Applicant shall have up to and including November 1, 2013, to file a reply to
Respondents’ Answer to Application.
DATED this 25th day of September, 2013.

BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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