Ulloa v. Cain

Filing 10

ORDER AND REASONS denying 2 Motion to Appoint Counsel and for an EvidentiaryHearing and 3 Motion for Leave to File a Traverse. Signed by Magistrate Judge Karen Wells Roby on 10/20/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LESTER ULLOA

CIVIL ACTION

VERSUS

NO. 15-4395

BURL CAIN, WARDEN

SECTION “J”(4)

ORDER AND REASONS
The petitioner, Lester Ulloa, has filed a Motion to Appoint Counsel and for an
Evidentiary Hearing (Rec. Doc. No. 2) and a Motion For Leave to File a Traverse (Rec. Doc.
No. 3) requesting that counsel be appointed to assist in this federal habeas corpus proceeding, under
28 U.S.C. § 2254, and that he be allowed to file a traverse to any response filed by the State in
connection with his petition.
Ulloa filed the instant federal habeas petition challenging his current sentence following his
2002 conviction for second degree rape in St. Tammany Parish. The respondent has not yet had the
opportunity to file a response in opposition to the petition nor is there any indication that the
respondent was served with petitioner’s motions.
Ulloa seeks appointment of counsel to assist him in the prosecution of this habeas corpus
proceeding. However, it is well settled that a petitioner has no right to appointment of counsel in
a habeas corpus proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see also Wright
v. West, 505 U.S. 277, 293 (1992) (no Constitutional right to counsel in habeas corpus proceedings);
Ortloff v. Fleming, 88 F. App’x 715, 717 (5th Cir. 2004); Johnson v. Hargett, 978 F.2d 855, 859 (5th
Cir. 1992). Such a benefit is only required when the Court determines that an evidentiary hearing
is to be held on a § 2254 petition. See Rule 8(c), Rules Governing § 2254 Cases; Urias v. Thaler,
455 F. App’x 522, 523 (5th Cir. 2011). Based on the limited record before the Court and the

allegations asserted, the record does not compel that an evidentiary hearing will be warranted in this
case.
To that end, Ulloa’s requests are at best premature. The decision of whether to hold an
evidentiary hearing is governed by 28 U.S.C. § 2254(e)(2). According to § 2254(e)(2), the district
court may hold an evidentiary hearing only when the petitioner has shown that either the claims
raised rely on a new, retroactive rule of constitutional law that was previously unavailable (§
2254(e)(2)(A)(I)) or the claim relies on a factual basis that could not have been previously
discovered by an exercise of due diligence (§ 2254(e)(2)(A)(ii)); and the facts underlying the claim
show by clear and convincing evidence that, but for the constitutional error, no reasonable jury
would have convicted the petitioner. (§ 2254(e)(2)(B)). An evidentiary hearing is not required
“when the record is complete or the petitioner raised only legal claims that can be resolved without
the taking of additional evidence.” Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989). Based on
the record before the Court at this time, Ulloa has not established that the record will be insufficient
to resolve the claims raised or that he has met any of the criteria for holding an evidentiary hearing.
The Court also has discretion to appoint counsel for an indigent petitioner pursuant to the
Criminal Justice Act under 18 U.S.C. § 3006A, if doing so would advance the proper administration
of justice. Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.1985) (“This court appoints counsel to
represent a person seeking habeas corpus relief when the interests of justice so require and such
person is financially unable to obtain representation.”); accord, Hulsey v. Thaler, 421 F. App’x 386,
388 n.5 (5th Cir. 2011) (assuming without deciding that § 3006A “in fact applies wholesale to
non-capital habeas cases such as this.”). A review of Ulloa’s petition does not reveal any complex
legal issues which would warrant appointment of counsel. The Court does not find that the interests

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of justice dictate appointment of counsel at this time. See Wardlaw v. Cain, 541 F.3d 275, 279 (5th
Cir. 2008). Ulloa’s motion for appointment of counsel and an evidentiary hearing must be denied.
Finally, Ulloa requests that he be allowed to file a traverse to any answer filed by the State
to his petition. The law provides that a petitioner may submit a reply to the respondent’s answer in
a time fixed by the Court. Rule 5(e) of the Rules Governing Section 2254 Cases. At this time,
however, the Court can not properly gauge a specific return date until the State has filed an answer
or response to the petition. Ulloa’s motion for that reason is premature. His request must be denied
without prejudice to his ability to request a fixed time once an answer or response has been filed by
the respondent with the Court. Accordingly,
IT IS ORDERED that Ulloa’s Motion to Appoint Counsel and for an Evidentiary
Hearing (Rec. Doc. No. 2) and a Motion For Leave to File a Traverse (Rec. Doc. No. 3) are
DENIED.
New Orleans, Louisiana, this 20th day of October, 2015.

____________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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