Powell v. State of Iowa et al

Filing 5

ORDER re 1 Petition for Writ of Habeas Corpus filed by Jayme Ryan Powell denying as moot 4 PRO SE MOTION for Leave to Proceed in forma pauperis filed by Jayme Ryan Powell and granting 3 PRO SE MOTION to Appoint Counsel filed by Jayme Ryan Powe ll. Appointed counsel shall file an amended petition in twenty (20) days from the date of this Order, or file an application for additional time to file amended complaint. The Clerk of Court is ordered to send a copy of the Petitioner's petiti on by certified mail to the respondent and the Iowa Attorney General. See text of Order for details. Signed by Senior Judge Donald E O'Brien on 3/18/13. (copy w/nef mailed to pro se petitioner; CJA Panel Administrator notified; copy w/petition sent by certified mail to respondent and Iowa Attorney General) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAYME RYAN POWELL,
Plaintiff,

No. 13-CV-4020-DEO

vs.

ORDER

JIM McKINNEY
Defendants.
____________________
Mr. Powell is currently incarcerated at the Fort Dodge
Correctional Facility pursuant to a conviction for first and
second degree robbery. Docket #1, Powell v. State, 820 N.W.2d
159 (Iowa Ct. App. 2012).
I.

IN FORMA PAUPERIS
On February 13, 2013, Mr. Powell filed a pro se petition

under 28 U.S.C. § 2254 for Writ of Habeas Corpus.

Docket # 1.

On February 14, 2013, this Court entered an order stating that
Mr. Powell needed to pay a five dollar filing fee or apply to
proceed in forma pauperis before his case could proceed.1

On

February 21, 2013, this Court was informed by the Clerk of
Court that Mr. Powell had previously paid the five dollar
filing fee, although it had not been noted in the Court file.
On March 4, 2013, Mr. Powell filed an application to proceed

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In the February 14, 2013 Order, the Court also dismissed
the State of Iowa as party.

in forma pauperis.

Docket #4.

Accordingly, the Court amends

its previous order in the following manner:
1.

Mr. Powell has paid the appropriate fee.

No further

fee is required.
2. Mr. Powell’s application to proceed in forma pauperis
is denied as moot.
3.

The Clerk of Court is ordered to send a copy of the

Petitioner's 28 U.S.C. § 2254 petition by certified mail to
the respondent and the Iowa Attorney General in accordance
with Rule 4, Rules Governing Section 2254 Cases.
II.

COURT APPOINTED COUNSEL
On March 4, 2013, Mr. Powell filed an application for

court appointed counsel.

Docket #3.

28 U.S.C.A. § 2254(h)

states:
Except as provided in section 408 of the
Controlled
Substances
Act,
in
all
proceedings brought under this section, and
any subsequent proceedings on review, the
court may appoint counsel for an applicant
who is or becomes financially unable to
afford counsel, except as provided by a
rule promulgated by the Supreme Court
pursuant
to
statutory
authority.
Appointment of counsel under this section
shall be governed by section 3006A of title
18.2

2

18 U.S.C.A. § 3006A(a)(2) states “[w]henever the United
States magistrate judge or the court determines that the
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The Court has considered the record in this case and
determined that the appointment of counsel is appropriate.
Appointed counsel shall file an amended petition in twenty
(20) days from the date of this Order, or file an application
for additional time to file amended complaint prior to the
expiration of the filing deadline.
III. CONCLUSION
For the reasons set out above, the Clerk shall file Mr.
Powell’s

Petition

General.

Mr. Powell’s Motion to proceed in forma pauperis is

denied as moot.3

and

send

a

copy

to

the

Iowa

Attorney

Mr. Powell’s Motion to Appoint Counsel is

granted, and appointed counsel shall file an amended complaint
as directed in this Order.
IT IS SO ORDERED this 18th day of March, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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.”
3

Mr. Powell’s application to proceed in forma pauperis
denied without prejudice and may be re-filed by Mr. Powell’s
appointed counsel.
3

NOTICE OF LAWSUIT
and REQUEST FOR
WAIVER OF SERVICE OF SUMMONS
TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAYME RYAN POWELL,
Petitioner,

No. 13-CV-4020-DEO

v.
JIM MCKINNEY, Warden,
Respondent.
____________________
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the complaint and a copy of the corresponding order from this Court are attached. This complaint
has been filed in the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate
in saving unnecessary costs of service of summons and complaint. Please sign the enclosed document
where appropriate acknowledging receipt of the complaint and notice of this pending lawsuit and waiving
formal service of summons. After signing the enclosed document, please return it to the United States
Clerk’s Office in the envelope provided within thirty (30) days of this date: March 18, 2013 .
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
March 18, 2013
, 2013.
of the plaintiff, this

/s/ djs, Deputy Clerk
Signature (Clerk’s Office Official)
Northern District of Iowa

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ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS

March 18, 2013
(**Return this document within thirty days after ______________________________, to the United States
Clerk’s Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAYME RYAN POWELL,
Petitioner,

No. 13-CV-4020-DEO

v.
JIM MCKINNEY,
Respondents.
____________________
I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose
behalf I am addressed) have been named a defendant. I have received and/or read the complaint
accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the complaint by not
requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner
provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the Court except for objections based on a defect in the service of summons.
I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an
answer or motion under Rule 12 of the Federal Rules of Civil Procedure is not served within 60 days after
March 18, 2013
, (the date Notice, Waiver and corresponding documents were sent or from
the date of the filing of the Amended Complaint, whichever is later) .
Date

Signature
Printed name
As
(Title)

of
(Entity)

Address Form
Case Number: 13-CV-4020-DEO
To:
RE:

March 18, 2013
Date: _____________________

Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:

Defendant:

ALL Respondents
Attorney General
Hoover State Office Building
1305 E. Walnut Street-2nd Floor
Des Moines, Iowa 50319
Fort Dodge Correctional Facility
Jim McKinney, Warden
1550 L Street
Fort Dodge, Iowa 50501

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