MORRALL v. MCDANIEL

Filing 8

ORDER and REPORT AND RECOMMENDATION granting 2 Motion for Leave to Proceed in forma pauperis and denying motion for appointment of counsel. Ordered by US MAGISTRATE JUDGE CHARLES H. WEIGLE on 9/25/2024 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BRANDON MORRALL,
Petitioner,
VS.
WARDEN MCDANIEL,
Respondent.
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CIVIL NO. 5:24-CV-253-CAR-CHW

ORDER AND RECOMMENDATION
In accordance with the Court’s previous orders and instructions, pro se Petitioner
Brandon Morrall, an inmate in the Macon State Prison in Oglethorpe, Georgia, has filed a
copy of his prison trust fund account statement (ECF No. 7). Petitioner also requests the
assistance of an attorney to help him prepare his federal habeas petition, and he seeks a
transfer to another prison or that an “officer be posted on all post to ensure safety for
[Petitioner] to work and prepare for [his] federal habeas.” Trust Fund Account Statement
1, ECF No. 7. For the following reasons, it is RECOMMENDED that Petitioner’s
request for a transfer or guard be DENIED. Petitioner’s motion for appointed counsel is
again DENIED.

Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is

GRANTED, and the Court orders service on Respondent as set forth in more detail below.
I.

Request for Transfer or Guard

In a letter enclosed with his Court-ordered prison trust fund account statement,
Petitioner alleges that Macon State Prison is “very dangerous,” primarily due to

understaffing. Trust Fund Account Statement 1, ECF No. 7. He alleges he has already
been “stabbed up and beaten” by other inmates, and he requests to be transferred to another
prison or have this Court order the posting of additional guards at Macon State Prison. Id.
These requests should be denied because they are not properly brought in this habeas case.
As a general rule, “a challenge to the fact or duration of a prisoner’s confinement is
properly treated as a habeas corpus matter, whereas challenges to conditions of
confinement may proceed under [42 U.S.C.] § 1983 . . . .” McKinnis v. Mosely, 693 F.2d
1054, 1057 (11th Cir. 1982) (per curiam) (quoting Johnson v. Hardy, 601 F.2d 172, 174
(5th Cir. 1979)). Any complaints about the conditions of Plaintiff’s confinement—to
include complaints about his safety at Macon State Prison—must be brought in an action
pursuant to 42 U.S.C. § 1983. Such claims arise under the Eighth Amendment, and they
are therefore “not cognizable under the mutually exclusive remedy of § 2254.” Daker v.
Warden, 805 F. App’x 648, 651 (11th Cir. 2020) (per curiam).

It is therefore

RECOMMENDED that Petitioner’s request for a prison transfer or additional guards be
DENIED. Petitioner may file a separate federal civil action pursuant to 42 U.S.C. § 1983
if he wishes to challenge the conditions of his confinement. The Clerk is DIRECTED to
mail Petitioner a blank copy of the necessary forms for a § 1983 action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to these recommendations with the Honorable C. Ashley Royal, Senior United States
District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this
Recommendation. The parties may seek an extension of time in which to file written
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objections, provided a request for an extension is filed prior to the deadline for filing written
objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga.
L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the
right to challenge on appeal the district judge’s order based on factual and legal conclusions
to which no objection was timely made. See 11th Cir. R. 3-1.
II.

Motion for Appointed Counsel

Petitioner also again requests the appointment of counsel in this action. Trust Fund
Account Statement 1, ECF No. 7. As was previously explained to Petitioner, there is
generally no right to legal representation in a federal habeas corpus proceeding. See, e.g.,
Wright v. West, 505 U.S. 277, 293 (1992). The Rules governing habeas cases provide that
appointment of counsel is proper if an evidentiary hearing is needed, if counsel is necessary
for effective discovery, or “if the interest of justice so requires.” Jones v. Thompson, No.
CV410-039, 2010 WL 3909966, at *2 (S.D. Ga. Oct. 5, 2010) (citing Rules 6(a) & 8(c) of
the Rules Governing § 2254 Cases).

Plaintiff has not provided the Court with any

additional facts that would indicate that appointed counsel is necessary at this time. 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 for counsel.

Until then,

Petitioner’s request for appointed counsel is DENIED.
III.

Motion to Proceed in Forma Pauperis and Order for Service

Petitioner has now filed his trust prison trust fund account statement that shows he
is presently unable to prepay the $5.00 filing fee for this case. Petitioner’s motion to
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proceed in forma pauperis (ECF No. 2) is thus GRANTED. It is also now ORDERED
that, within thirty (30) days of the date of this Order, Petitioner amend his petition to
include every unalleged possible constitutional error or deprivation entitling him to federal
habeas corpus relief, failing which Petitioner will be presumed to have deliberately waived
his right to complain of any constitutional errors or deprivations other than those set forth
in his initial habeas petition. If amended, Petitioner will be presumed to have deliberately
waived his right to complain of any constitutional errors or deprivations other than those
set forth in his initial and amended habeas petitions.
It is further ORDERED that Respondent file an answer to the allegations of the
petition and any amendments within sixty (60) days after service of this Order and in
compliance with Rule 5 of the Rules Governing Section 2254 Cases. Either with the filing
of the answer or within fifteen (15) days after the answer is filed, Respondent shall move
for the petition to be dismissed or shall explain in writing why the petition cannot be
adjudicated by a motion to dismiss. Any and all exhibits and portions of the record that
Respondent relies upon must be filed contemporaneously with Respondent’s answer or
dispositive motion.
No discovery shall be commenced by either party without the express permission of
the Court. Unless and until Petitioner demonstrates to this Court that the state habeas
Court’s fact-finding procedure was not adequate to afford a full and fair evidentiary hearing
or that the state habeas court did not afford the opportunity for a full, fair, and adequate
hearing, this Court’s consideration of this habeas petition will be limited to an examination
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of the evidence and other matters presented to the state trial, habeas, and appellate courts.
Pursuant to the memorandum of understanding with the Attorney General of the
State of Georgia, a copy of the petition and a copy of this Order shall be automatically
served on the Attorney General and Respondent electronically through CM/ECF. A copy
of this Order shall be served by the Clerk by U.S. mail upon Petitioner. Petitioner is
advised that his failure to keep the Clerk of the Court informed as to any change of address
may result in the dismissal of this action.
SO ORDERED AND RECOMMENDED, this 25th day of September, 2024.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge

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