ALLEN v. BROWN

Filing 5

Entry and Order - The request to proceed in forma pauperis 2 is granted. These are not circumstances in which it is in the interest of justice to appoint counsel for the petitioner, and for this reason his motion for appointment of counsel 3 is denied. The petitioner shall have through October 10, 2012, in which to explain how the reinstatement of his direct appeal from the LaPorte Superior Court renders his current custody in violation of the Constitution or laws of the United States. (See Entry.) Copy to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 9/11/2012. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MARIO ALLEN,

)
)
Petitioner,
)
v.
)
)
RICHARD BROWN, Superintendent, )
)
Respondent.
)

No:

2:12-cv-0266-JMS-DKL

Entry and Order
I.
A.
The request to proceed in forma pauperis [2] is granted.
B.
The Sixth Amendment right to counsel does not apply in habeas corpus
actions. Coleman v. Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546, 2568 (1991).
However, a district court does have the authority to appoint counsel to represent a
habeas petitioner whenever it "determines that the interests of justice so require. . .
." 18 U.S.C. ' 3006A(a)(2)(B). Whether to appoint counsel is committed to the
discretion of the trial court. United States v. Evans, 51 F.3d 287 (10th Cir. 1995).
Factors which the court may consider include: (1) whether the merits of the
indigent's claim are colorable; (2) ability of the indigent to investigate crucial facts;
(3) whether the nature of the evidence indicates that the truth will more likely be
exposed where both sides are represented by counsel; (4) capability of the indigent
to present his case; and (5) complexity of the legal issues raised by the complaint.
Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983).
Application of the foregoing factors in this case indicates that the petitioner=s
claim is not particularly complex, that there is no likelihood that an evidentiary
hearing will be necessary, that no discovery or other investigation will be required,
that due allowance to the petitioner=s pro se status will be made and that the
petitioner has at least thus far demonstrated exceptional ability to express and
present his claims. In addition, the petitioner has the means (writing materials,
etc.) to continue to present his claims in this action, the petitioner is literate and

seems fully aware of the proceedings involving his conviction and sentence in the
Indiana state courts.
These are not circumstances in which it is in the interest of justice to appoint
counsel for the petitioner, and for this reason his motion for appointment of counsel
[3] is denied.
II.
AA necessary predicate for the granting of federal habeas relief [to a
petitioner] is a determination by the federal court that [his or her] custody violates
the Constitution, laws, or treaties of the United States.@ Rose vs. Hodges, 423 U.S.
19, 21 (1975). The petitioner shall have through October 10, 2012, in which to
explain how the reinstatement of his direct appeal from the LaPorte Superior Court
renders his current custody in violation of the Constitution or laws of the United
States.
IT IS SO ORDERED.

09/11/2012
Date: _________________________
Distribution:
Marion Anthony Allen
#143473
Wabash Valley Correctional Facility
Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
Carlisle, IN 47838

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana