Kellum v. Phelps et al

Filing 26

MEMORANDUM ORDER - re 22 MOTION for Extension of Time, MOTION to Appoint Counsel filed by Melvin N. Kellum. Signed by Judge Sue L. Robinson on 2/11/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MELVIN N. KELLUM,
Petitioner,

v.
PERRY PHELPS, Warden,
and ATTORNEY GENERAL
OF THE STATE OF DELAWARE,

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) Civ. No. 11-226-SLR
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Respondents.

MEMORANDUM ORDER
At Wilmington this

I \+

day of February, 2013, having considered petitioner's

combined motion for an extension of time to file a reply to the State's answer and
request for representation by counsel;
IT IS ORDERED that:
1. Petitioner's motion for an extension of time to file a reply to the State's
answer (D.1. 22) is DENIED as moot. Petitioner filed a document titled "memorandum
in support" approximately fifteen days after filing his motion for an extension of time,
apparently in response to the State's answer.
2. Petitioner's motion for representation by counsel (D.I. 22) is DENIED without
prejudice to renew, for the reasons that follow:
a. It is well-settled that a petitioner does not have an automatic
constitutional or statutory right to representation in a federal habeas proceeding. See
Coleman v. Thompson, 501 U.S. 722, 752 (1991). Nevertheless, a court may seek

representation by counsel for a petitioner who demonstrates" special circumstances

indicating the likelihood of sUbstantial prejudice to [petitioner] resulting ... from
[petitioner's] probable inability without such assistance to present the facts and legal
issues to the court in a complex but arguably meritorious case." See Tabron v. Grace,
6 F.3d 147, 154 (3d Cir. 1993)(citing Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.
1984); 18 U.S.C. § 3006A (a)(2)(B)(representation by counsel may be provided when a
court determines that the "interests of justice so require").
b. Here, petitioner requests representation by counsel because he is
indigent; he does not have a high school education; and he has a history of mental
health issues. Petitioner asserts that he "is not competent to file an appeal, and was
never tested to see if he was or not by the State attorneys or the trial court." (D.1. 22 at
2) Attached to petitioner's motion is a portion of the Delaware Superior Court's
sentencing hearing transcript, during which defense counsel explained that,
from a very early age, [petitioner] had some behavioral problems. And that's
reflected in a number of commitments to various facilities. He's been involved
with Delaware Guidance, the Terry Center, Pace Options, Douglas Behavioral
School. Meadowood Hospital has treated him. Rockford Center has treated
him. [] He has been treated at some of these facilities. Meadowood did not
report back. And there are some diagnoses from Rockford Center indicating
there were some issues for which medication was issued.
(D.1. 22 at 8-9)
c. Turning first to petitioner's assertion that he suffers from mental health
issues and is not competent, the court notes that Federal Rule of Civil Procedure
17{c){2) provides that "[t]he court must appoint a guardian ad litem - or issue another
appropriate order - to protect a minor or incompetent person who is unrepresented in
an action." The United States Court of Appeals for the Third Circuit has interpreted
Rule 17(c)(2) as requiring a district court to sua sponte determine if a pro se litigant is
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incompetent to litigate his action and is, therefore, entitled to either appointment of a
guardian ad litem or other measures to protect his rights. See Powell v. Symons, 680
F.3d 301, 307 (3d Cir. 2012). A district court's obligation under Rule 17(c)(2) is
triggered if it is "presented with evidence from an appropriate court of record or a
relevant public agency indicating that the party has been adjudicated incompetent, or if
the court receive[s] verifiable evidence from a mental health professional demonstrating
that the party is being or has been treated for mental illness of the type that would
render him or her legally incompetent." Id. at 307. However, the court "need not inquire
sua sponte into a pro se plaintiff's mental competence based on a litigant's bizarre
behavior alone, even if such behavior may suggest mental incapacity." Id. at 303. The
decision whether to appoint a next friend or guardian ad litem rests within the sound
discretion of the district court. Id.
d. In this case, the sentencing hearing transcript reflects that petitioner
has a "mental health history" and that he has been provided some undisclosed
medication at some point in time for his problems. This evidence, while thin, suffices to
place the court on notice that a Rule 17 inquiry is appropriate.
e. That said, there are no mental health records contained in the court
file. Even if the court were to accept, as correct, defense counsel's assertions during
the Superior Court sentencing hearing, there is no verifiable evidence of record
regarding petitioner's mental health issues (other than his own statements), nor any
evidence that petitioner is unable to understand the legal proceedings he has initiated.
f. In addition, petitioner has filed numerous pleadings in this case. The
pleadings are articulate, well-reasoned, and address the issues raised in his

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application.
g. For these reasons, the court finds that the medical evidence of record
is sufficiently unpersuasive to support a finding of incompetency. Inasmuch as there is
no substantial question regarding petitioner's competence, it is not necessary to
conduct a Rule 17(c) competency hearing.
h. Further, after viewing the record in context with petitioner's filings, the
court concludes that the interests of justice do not require representation by counsel at
this time. It also does not appear that expert testimony will be necessary or that the
ultimate resolution of the petition will depend upon credibility determinations.
Accordingly, the court denies without prejudice petitioner's request for representation.

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