GOMILLION v. WILLIAMS

Filing 9

ORDER denying 4 Motion construed as seeking a writ of mandamus; denying 5 Motion for transfer or release; denying 6 Motion for Leave to Proceed in forma pauperis; denying 7 Motion to Appoint Counsel. Petitioner is hereby ordered to pay t he $5.00 filing fee and to recast his petition on the standard Section 2254 form within twenty-one (21) days of the date of this Order. The Clerk is directed to forward a blank copy of these forms to Petitioner along with a copy of this Order. Ordered by US Magistrate Judge STEPHEN HYLES on 6-2-14 (mpm)***+ on 6/2/2014 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MICHAEL GOMILLION,
Petitioner,
VS.
Warden STANLEY WILLIAMS,
Respondent.

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CIVIL NO. 4:14-CV-119-CDL-MSH

PROCEEDINGS UNDER 28 U.S.C. § 2254

ORDER
Petitioner Michael Gomillion has filed an application for writ of habeas corpus
under 28 U.S.C. § 2254. (ECF No. 1.) Plaintiff has also filed a motion for leave to
proceed without prepayment of the required filing fee or security therefor pursuant to 28
U.S.C. § 1915(a). (ECF No. 6.) However, a review of Petitioner’s account certification
form states that Petitioner has an average monthly balance of $35.00 for the last six
months, with an available balance of $15.60. (ECF No. 2-1.) The filing fee required in a
§ 2254 case is $5.00. Petitioner’s submissions show that he should be able to pay this
amount.
Petitioner's Motion to proceed in forma pauperis is accordingly DENIED.
Petitioner shall have TWENTY-ONE (21) DAYS from the date shown on this Order to
pay the required $5.00 filing fee. Petitioner is also ORDERED to re-file his § 2254
petition on this Court’s standard § 2254 forms. Petitioner’s recast petition may only
contain the grounds for relief and supporting facts.

Petitioner may not attach any

previously filed exhibits but may reference those exhibits in his petition. The Clerk of
Court is hereby DIRECTED provide Petitioner with the standard forms. Failure to
comply with this Order will result in the dismissal of Petitioner’s application.
Petitioner has filed several other motions which are currently pending.
Specifically, Petitioner has filed a “Motion to Submit 28 U.S.C. § 2254 Certificate of
Trial Judge or Called Final Disposition Admissible in Evidence.” (ECF No. 4.) In this
motion, from what the Court can determine, it appears Petitioner is moving the Court to
direct the trial judge in his state criminal case to issue a “Certificate of Trial Judge/ Final
Disposition” so that he can proceed with his petition in this Court. In essence, Petitioner
is seeking a writ of mandamus in this motion.

However, federal courts have no

jurisdiction to direct a state court and its judicial officers in the performance of their
duties where mandamus is the only relief sought. Brown v. Lewis, 361 F. App’x 51, 56
(11th Cir. 2010). Thus, Petitioner’s motion is DENIED.
Petitioner has also filed a “Motion for Rule 23” wherein he asks the Court to
release or transfer him pending review of this petition. (ECF No. 5.) Petitioner is not
entitled to said relief. Rule 23(a) of the Federal Rules of Appellate Procedure forbids the
transfer of a prisoner during the pendency of the appeal of a habeas corpus petition. Rule
23(b) allows a District Court, within its own discretion, to release a prisoner pending
appeal of a habeas corpus petition. Neither of these rules applies to Petitioner’s case.
Therefore, Petitioner’s motion for Rule 23 relief is DENIED.
Lastly, Petitioner has filed a Motion for Appointment of Counsel. (ECF No. 7.)
Generally, there is no right to legal representation in a federal habeas corpus proceeding.
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Wright v. West, 505 U.S. 277, 293 (1992). Appointment of counsel is proper in a habeas
action if counsel is necessary for effective utilization of discovery procedures or if an
evidentiary hearing is required. See Rules Governing § 2254 Cases, Rules 6(a) and 8(c),
28 U.S.C.A. § 2254. Thus, Petitioner’s motion for appointment of counsel is DENIED.
However, if it becomes apparent at some point later in these proceedings that counsel
should be appointed for Petitioner, the Court will entertain a renewed motion.
There shall be no service of process in this case until further order of the Court.
SO ORDERED, this 2nd day of June, 2014.

/s/Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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