PEARSON v. HOLLINGSWORTH

Filing 19

MEMORANDUM OPINION AND ORDER: Petitioner's Motion to Appoint Counsel 17 is hereby DENIED without prejudice. It is FURTHER ORDERED that, if Petitioner wishes to proceed with this action, he shall file a response saying so on or before May 22, 2017. If the Court does not receive a response by that date, the Court may dismiss this action without prejudice for want of prosecution. See opinion for details.The Clerk shall mail a copy of this Memorandum Opinion and Order to Petitioner at his address of record. Signed by Judge Randolph D. Moss on 4/6/2017. (lcrdm3, ) Modified on 4/6/2017 (kt). (Main Document 19 replaced on 4/6/2017) (zkt).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PRESTON PEARSON,
Petitioner,
v.

Civil Action No. 16-879 (RDM)

J. HOLLINGSWORTH,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Preston Pearson’s Motion to Appoint
Counsel. Dkt. 17. For the reasons explained below, the Court will DENY that motion without
prejudice and will ORDER that, if Pearson wishes to proceed with this action, he shall file a
response saying so on or before May 22, 2017. If the Court does not receive a response by that
date, the Court may dismiss this action without prejudice for want of prosecution.
This disposition turns on the procedural history of this case. On April 4, 2016, Pearson
filed his habeas petition, including with it his first request for appointment of counsel. Dkt. 1.
On May 20, 2016, the Court denied that request for counsel without prejudice. Dkt. 5. On
October 3, 2016, after receiving Defendant’s response to Pearson’s petition, the Court issued a
Memorandum Opinion and Order holding that Pearson’s habeas petition is properly construed as
falling within 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241. Dkt. 15. The Court explained to
Pearson the consequences of that conclusion, and allowed Pearson to withdraw or to amend his
pleading on or before November 3, 2016. See id. The Court later extended that deadline to
January 3, 2017. See Dkt. 16; Minute Order of November 7, 2016.

While the Court awaited Pearson’s response, Pearson filed the pending motion to appoint
counsel. Dkt. 17. In response, the Court held that it could not evaluate the motion without
seeing the briefs filed in his underlying criminal appeal. See Minute Order of December 27,
2016. The Court, accordingly, ordered Pearson to provide the requested materials on or before
January 19, 2017, and stayed Pearson’s deadline to object to the Court construing his petition
under § 2254 until the motion to appoint counsel was resolved. Id.
On February 3, 2017, Pearson sent the Court a letter requesting a two-week extension of
time to respond to the Court’s request for materials due to Pearson’s illness. Dkt. 18. Upon
consideration of that letter, the Court extended Pearson’s deadline to respond to February 27,
2017. It is now April 6, 2017, and the Court has not heard from Pearson.
Given Pearson’s failure to timely respond to the Court’s request for the appellate briefs,
the Court hereby ORDERS that Pearson’s second motion for appointment of counsel is
DENIED without prejudice. Should Pearson wish to renew his motion, he may do so by
providing the Court with copies of the materials described in the Minute Order of December 27,
2016, i.e., (1) the parties’ briefs in Pearson’s underlying direct appeal in the District of Columbia
Court of Appeals; (2) the Motion to Recall the Mandate from that same proceeding; and (3) the
Order Denying Motion to Recall Mandate also from that proceeding.
The Court FURTHER ORDERS that, if Pearson wishes to proceed with this action, he
shall file a response saying so on or before May 22, 2017. In that response, Pearson shall (1)
indicate his intent to proceed with this action in a timely fashion and (2) state whether he intends
to amend or to withdraw his habeas petition before the Court construes it as a petition under 28
U.S.C. § 2254, as described in the Court’s Memorandum Opinion and Order of October 3, 2016
(Dkt. 15). In the alternative, if Pearson remains ill and is therefore unable to respond to this

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Order, Pearson shall so inform the Court on or before May 22, 2017. If the Court does not
receive Pearson’s response on or before that date, the Court may dismiss this action without
prejudice for want of prosecution.
The Clerk shall mail a copy of this Memorandum Opinion and Order to Pearson at his
address of record.
SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: April 6, 2017

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