Powell v. Heimgartner et al

Filing 15

MEMORANDUM AND ORDER ENTERED: Petitioner's motions 12 & 13 for the appointment of counsel are granted. Petitioner's motion 13 for evidentiary hearing is denied. Respondents shall cause to be forwarded to the clerk of the court the records and transcripts of the criminal proceedings challenged by the petitioner, including appellate and post-conviction records. Petitioner's motion 14 for an extension of time is granted. Counsel for petitioner is granted to and including May 6, 2013, to file a response to the motion to dismiss. Signed by Senior District Judge Sam A. Crow on 3/6/2013. (Mailed to pro se party Richard T. Powell by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICHARD T. POWELL,
Petitioner,
v.

CASE NO. 12-3119-SAC

JAMES HEIMGARTNER, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to 28
U.S.C. § 2254. Respondents have filed a motion to dismiss (Doc. 12). Also
pending before the court are two motions filed by the petitioner seeking
the appointment of counsel (Docs. 2 and 13) and his motion for an extension
of time to file a response (Doc. 14).
There is no constitutional right to the appointment of counsel in
a federal petition for habeas corpus. Pennsylvania v. Finley, 481 U.S.
551, 555 (1987). Instead, the decision to appoint counsel lies in the
discretion of the court. Swazo v. Wyoming Dep’t of Corrections State
Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). See also 18 U.S.C.
§ 3006A(a)(2)(B)(a habeas court may appoint counsel in an action brought
under § 2254 “where the interests of justice so require”).
In ruling on a petitioner’s request for counsel, the court should
consider “the litigant’s claims, the nature of the factual issues raised
in the claims, the litigant’s ability to present his claims, and the
complexity of the legal issues raised by the claims.” Long v. Shillinger,
927 F.2d 525, 526-27 (10th Cir. 1991).
In this matter, petitioner challenges his convictions of capital

murder and criminal possession of a firearm. Respondents assert the
petition is not timely, and petitioner, in a motion prepared with the
assistance of another prisoner, asserts that he requires the appointment
of counsel because he is mentally retarded.
Having

considered

these

circumstances,

the

court

finds

the

appointment of counsel is appropriate and appoints Jean Gilles Phillips,
Alice Craig, and Elizabeth Cateforis to represent petitioner in this
matter. These attorneys’ business address is: The University of Kansas
School of Law, Paul E. Wilson Project for Innocence and Post-Conviction
Remedies, 1535 W. 15th St., Suite #409, Lawrence, KS, 66045, and the
telephone number for that office is [phone]. The court requests
that counsel file a formal entry of appearance in this matter within ten
(10) days.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motions for the
appointment of counsel (Docs. 2 and 13) are granted. Petitioner’s motion
for evidentiary hearing, incorporated in Doc. 13, is denied.
IT IS FURTHER ORDERED the respondents shall cause to be forwarded
to the clerk of the court the records and transcripts of the criminal
proceedings challenged by the petitioner, including appellate and
post-conviction records.
IT IS FURTHER ORDERED that petitioner’s motion for an extension of
time (Doc. 14) is granted.

Counsel for petitioner is granted to and

including May 6, 2013, to file a response to the motion to dismiss.
Copies of this order shall be transmitted to the parties.

IT IS SO ORDERED.
DATED:

This 6th day of March, 2013, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge