RHODES v. FLEMING et al

Filing 22

Entry Concerning Selected Matters: The only proper respondent in an action for habeas corpus is the petitioner's custodian, named in his or her official capacity. None of the individuals, businesses or agencies designated as co-respond ents is Rhodes' custodian. All such co-respondents are therefore stricken. The motions to dismiss filed by certain of the designated respondents [dkts 12, 19 and 20] are denied as moot. Rhodes' motion for extension of time to resp ond to directions in the Entry of July 14, 2015 [dkt 16] is granted. He shall have through September 1, 2015 in which to do so. 4. Rhodes' address and his habeas petition do not indicate that he is presently confined. For the present , Indiana Attorney General Greg Zoeller is designated as the respondent as shown in the caption of this Entry. The motion for the appointment of counsel [dkt 14] is denied ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 8/11/2015. Copy sent via US Mail. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TRACEY RHODES,
Petitioner,
v.
INDIANA ATTORNEY GENERAL
GREG ZOELLER,
Respondent.

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Case No. 1:15-cv-1067-WTL-TAB

Entry Concerning Selected Matters
It is known from proceedings in the civil rights action docketed as No. 1:13-cv-0165-SEBMJD that the prosecution of Tracy Rhodes in Howard County in No. 34D02-0602-FC-0036
concluded with Rhodes pleading guilty to four counts of sexual misconduct on October 10, 2007
and being sentenced for such offenses on November 14, 2007.
Rhodes has now filed a petition for writ of habeas corpus, which has gotten off on the
wrong foot. This Entry puts the case back on track through the following rulings:
1.

The only proper respondent in an action for habeas corpus is the petitioner’s

custodian, named in his or her official capacity. Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004)
(“[T]here is generally only one proper respondent to a given prisoner's habeas petition” and that
in a case challenging present physical confinement “the proper respondent is the warden of the
facility where the prisoner is being held, not . . . some other remote supervisory official.”). None
of the individuals, businesses or agencies designated as co-respondents is Rhodes’ custodian. All
such co-respondents are therefore stricken.
2.

The motions to dismiss filed by certain of the designated respondents [dkts 12, 19

and 20] are denied as moot.

3.

Rhodes’ motion for extension of time to respond to directions in the Entry of July

14, 2015 [dkt 16] is granted. He shall have through September 1, 2015 in which to do so.
4.

Rhodes’ address and his habeas petition do not indicate that he is presently

confined. For the present, Indiana Attorney General Greg Zoeller is designated as the respondent
as shown in the caption of this Entry.
5.

The court is obliged to conduct a preliminary review of the habeas petition pursuant

to pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States
District Courts. Rhodes’ response to the directions in the Entry of July 14, 2015 is expected to aid
the court in doing so for at least the reason that, as the Court of Appeals for the Third Circuit has
put it, “custody is the passport to federal habeas corpus jurisdiction.” Dessus v. Commonwealth of
Penn., 452 F.2d 557, 559-60 (3d Cir. 1971), cert. denied, 409 U.S. 853 (1972).
6.

Rhodes’ motion for appointment of counsel has also been considered. The core of

this motion is Rhodes’ contention that “[i]t places undue heavy burdens upon Petitioner to
represent himself due to the exceptional circumstances and complex legal issues of this particular
case.”
a.
Whether to appoint counsel is purely a discretionary matter. See 18 U.S.C. §
3006A(a)(2)(B) (“Whenever . . . the court determines that the interests of justice so require,
representation may be provided for any financially eligible person who . . . is seeking relief
under section 2241, 2254, or 2255 of title 28.”); see also Winsett v. Washington, 130 F.3d
269, 281 (7th Cir. 1997).
b.
The courts have made appointment of counsel the exception rather than the rule by
limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural,
legal or mixed legal and factual questions; (3) cases involving uneducated or mentally or
physically impaired petitioners; (4) cases likely to require the assistance of experts either
in framing or in trying the claims; (5) cases in which petitioner is in no position to
investigate crucial facts; and (6) factually complex cases. See generally 1 J. Liebman & R.
Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at 383-86 (2d ed. 1994).
c.
Here, the habeas petition has already been prepared and filed. It presents Rhodes’
claims using the terminology and principles associated with the relief he seeks. The habeas

petition presents Rhodes’ claims in a logical fashion which shows his familiarity with both
the circumstances of his own prosecution and conviction and the legal principle on which
his request for relief is based. Apart from this, the petitioner has the means (writing
materials, etc.) to present his claims in this action and is literate and seems fully aware of
the proceedings involving his conviction and sentence.
d.
The pivotal factor in considering the motion for appointment of counsel here is the
fact that there is nothing in Rhodes’ habeas challenge that is likely to turn on substantial
and complex procedural, legal or mixed legal and factual questions. There are no
extraordinary circumstances in this case and the circumstances noted above do not show
that it is in the interest of justice to appoint counsel for the petitioner. The motion for the
appointment of counsel [dkt 14] is denied.
IT IS SO ORDERED.
Date: 8/11/15

Distribution:
TRACEY RHODES
7511 N. 140 E.
Alexandria, IN 46001
Electronically Registered Counsel

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana