Mallish v. Raemisch et al
ORDER denying without prejudice 22 Motion to Appoint Advisory Counsel and 23 Motion to Expand the Record. FURTHER ORDERED that if Mr. Mallish wishes to file a Reply to the Respondents Answer, he shall file the Reply within 21 days of the date of this Order. ORDERED by Judge Raymond P. Moore on 04/12/2016.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 15-cv-02470-RM
MICHAEL J. MALLISH,
RICK RAEMISCH, Executive Director, Colorado Dep’t of Corrections, and
CYNTHIA COFFMAN, the Attorney General of the State of Colorado,
ORDER ON PENDING MOTIONS
Mr. Mallish has filed, pro se, an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254. (Docket No. 1). Respondents have filed an Answer to the merits of Applicant’s
first, second and third claims for relief. (Docket No. 21). The fourth claim has been dismissed
as procedurally defaulted. (Docket No. 18). Mr. Mallish’s Reply to the Answer was due on
April 11, 2016. Instead of submitting a Reply, Applicant filed a Motion to Appoint Advisory
Counsel (Docket No. 22) and a Motion to Expand the Record (Docket No. 23).
“Whenever the United States magistrate judge or the court determines that the interests of
justice so require, representation may be provided for any financially eligible person who . . . is
seeking relief under section 2241, 2254, or 2255 of title 28.” 18 U.S.C. § 3006A(a)(2). It is
unclear whether Applicant is financially unable to obtain counsel to represent him given that he
paid the filing fee in this action. Further, the interests of justice do not warrant the appointment of
counsel at this time. Mr. Mallish asserts in his Motion that he requests the appointment of counsel
to “assist [him] in obtaining, procuring, and presenting evidence in regards to this action, as well as
investigations.” (Docket No. 22). However, in considering Mallish’s constitutional claims
under the deferential standard set forth in 28 U.S.C. § 2254(d), a federal habeas court’s review “is
limited to the record that was before the state court that adjudicated the claim on the merits.@
Cullen v. Pinholster, 536 U.S. 170, 181 (2011). Applicant may not present any outside evidence
to support his claims unless the Court finds that the state-court decision fails § 2254(d)'s test, or if
§ 2254(d) does not apply. See Parrino v. Archuleta, No. 14-cv-02077-LTB, 2015 WL 1590606 at
*11 (D. Colo. April 6, 2015) (citing Pinholster). Consequently, the motion to appoint counsel will
be denied as premature. Counsel will be appointed for Mr. Mallish at a later date if the Court
determines, upon review of the Answer, state court record, and any Reply filed by Applicant, that
an evidentiary hearing is warranted. See Rule 8(c) of the Rules Governing Section 2254 Cases in
the United States District Courts.
Mr. Mallish also asks the Court to expand the record in this case to include all documents
filed in his other state criminal actions: People v. Mallish, Case No. 09CR1143; and, People v.
Mallish, Case No. 10CR538. He further requests a complete copy of his criminal file at the
Wheatridge Police Department, including all documents, audiotapes and videotapes relating to
Applicant’s allegations that police officers used excessive force against him during his arrest on
February 28, 2010, in relation to Case No. 10CR538. (Docket No. 23).
Again, the Court’s review of Mr. Mallish’s habeas claims is limited to the record that was
before the state court that adjudicated his claims on the merits. Further, Applicant fails to explain
how the requested documents are relevant to the claims asserted in his
§ 2254 action.
Therefore, the Motion to Expand the Record will also be denied. Mr. Mallish may renew his
motion if the Court determines, upon review of the Answer, state court record, and any Reply filed
by Applicant, that an evidentiary hearing is warranted.
Accordingly, it is
ORDERED that the Motion to Appoint Advisory Counsel (Docket No. 22) and Motion to
Expand the Record (Docket No. 23), filed on April 11, 2016, are DENIED WITHOUT
PREJUDICE. It is
FURTHER ORDERED that if Mr. Mallish wishes to file a Reply to the Respondent’s
Answer, he shall file the Reply within 21 days of the date of this Order.
DATED this 12th day of April, 2016.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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