Brown v. Tatum

Filing 13

ORDER denying 5 Motion to Appoint Counsel ; denying 6 Motion for Hearing; denying 7 Motion to expand the record. Signed by Magistrate Judge G. R. Smith on 5/27/16. (bcw)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

2016 MAY 26 PM 14:114

SAVANNAH DIVISION

SO.

f
i.

ROOSEVELT P. BROWN JR.,
Petitioner,
Case No. CV415-210

V.

CLAY TATUM, Warden,
Respondent.

The Court recently preliminarily reviewed Roosevelt Brown's 28
U.S.C. § 2254 petition and required the State to respond to one claim.

See doe. 10. But Brown also moves for appointment of counsel (doc. 5),
for an evidentiary hearing (doe. 6), and to expand the record (doe. 7). All
three motions are DENIED.'

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"Rule 8(c) of the Rules Governing § 225[4 Cases] provides that "[i]f an evidentiary
hearing is required, the judge shall appoint counsel for a movant who qualifies for the
appointment of counsel under 18 U.S.C. § 3006A(g){.]" Shepherd v. United States,
253 F.3d 585 1 587 (11th Cir. 2001). Before the hearing stage, however, "federal
courts generally appoint counsel in post-conviction proceedings only after a petition
for post-conviction relief passes initial evaluation." Id. (citing Johnson v. Avery, 393
U.S. 483 ) 487-88 (1969)). Although Brown's petition contains one claim that requires
an answer, the majority of his claims failed at the preliminary review stage. And that
one claim may well follow suit. The Court will not, prior to hearing from respondent,
appoint counsel.

SO ORDERED, this' day of May, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

The stage of these proceedings -- before the respondent answers or has filed any
motions and supporting documentation -- also makes it premature to hold an
evidentiary hearing or expand the record. See Rule 7(a) of the Rules Governing
Section 2254 Cases ("If the petition is not dismissed, the judge may direct the parties
to expand the record. . . ."); Rule 8(a) ("If the petition is not dismissed, the judge
must review the answer, any transcripts and records of state-court proceedings, and
any materials submitted under Rule 7 to determine whether an evidentiary hearing
is warranted.").
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