Ciha v. Hodges

Filing 4

ORDER denying 1 Pro Se Motion for Leave to Proceed in forma pauperis and denying 2 Pro Se Motion to Appoint Counsel filed by John Erwin Ciha. The clerk's office is directed to send a copy of the application for a writ of habeas corpus by ce rtified mail to the respondent and the Iowa Attorney General. The respondent is directed to file an answer or dispositive motion to the 3 application for a writ of habeas corpus by no later than 1/9/2015. Signed by Chief Judge Linda R Reade on 12/3/2014 (copy w/NEF mailed to Plt, certified mail to Dft and IA AG). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

JOHN ERWIN CIHA,
Petitioner,

No. C14-0123-LRR

vs.
ORDER

JOHN HODGES,
Respondent.
____________________________

This matter is before the court on the petitioner’s application for a writ of habeas
corpus (docket no. 3), application for appointment of counsel (docket no. 2) and
application to proceed in forma pauperis. The petitioner filed those applications on
November 17, 2014. The petitioner paid the required filing fee. See 28 U.S.C. § 1914.
With respect to the application to proceed in forma pauperis, the petitioner asserts,
among other things, that he is employed and lives with his wife. He, however, does not
indicate that he has any expenses. Further, it is highly unlikely that the petitioner will
incur significant costs in light of the nature of habeas corpus proceedings. Accordingly,
the petitioner’s application to proceed in forma pauperis is denied.
Currently not confined, the petitioner brings this action under 28 U.S.C. § 2254 to
challenge the legality of the restrictions on his liberty. See Partee v. Hopkins, 35 F.3d
365, 367 n. 4 (8th Cir. 1994) (noting that “federal courts have broadly construed the term
“in custody” to include periods of probation, parole and supervised release); United States
v. Tunstall, 17 F.3d 245, 246 n.3 (8th Cir. 1994) (noting that being paroled is still
sufficiently “in custody” to pursue federal habeas corpus relief). The clerk’s office is
directed to send a copy of the application for a writ of habeas corpus by certified mail to

the respondent and the Iowa Attorney General in accordance with Rule 4, Rules Governing
Section 2254 Cases. The respondent is directed to file an answer or dispositive motion to
the application for a writ of habeas corpus in accordance with Rule 5, Rules Governing
Section 2254 Cases, by no later than January 9, 2015.
Lastly, the court concludes that the assistance of counsel is not warranted because
the petitioner’s claims are not overly complex. See Davis v. Scott, 94 F.3d 444, 447 (8th
Cir. 1996) (setting forth factors to be considered for appointment of counsel in civil case);
Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (same); Wiggins v. Sargent, 753
F.2d 663, 668 (8th Cir. 1985) (stating an indigent litigant enjoys neither a statutory nor
a constitutional right to have counsel appointed in a civil case).

Accordingly, the

petitioner’s application for appointment of counsel is denied at this time.
IT IS SO ORDERED.
DATED this 3rd day of December, 2014.

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