Guillory v. Vannoy

Filing 6

ORDER denying 3 Motion Leave to Conduct Discovery and Motion to Appoint Counsel. Signed by Magistrate Judge Carol B Whitehurst on 12/28/2016. (crt,Chicola, C)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION Jeffrey Lee Guillory LA. DOC #126268 Civil Action No. 6:16-cv-1753 Sec. P versus Chief Judge Dee D. Drell Darryl Vannoy Magistrate Judge Carol B. Whitehurst ORDER Before the Court are Petitioner’s Motion to Appoint Counsel and Motion for Leave to Conduct Discovery. (Doc. 3.) Petitioner, who is proceeding pro se in this federal habeas corpus action, has been granted leave to proceed in forma pauperis. Petitioner seeks the appointment of counsel to assist him in the prosecution of his federal habeas action filed pursuant to 28 U.S.C. § 2254. In such cases, appointment of counsel is mandatory if an evidentiary hearing is required. Thomas v. Scott, 47 F.3d 713, 715 (5th Cir. 1995); see Rule 8(c) of the rules following 28 U.S.C. § 2254. The district court is not required to do so, but may appoint counsel, if it authorizes discovery in such a case. Thomas, 47 F.3d at 715 n.1.; see Rule 6(a) of the rules following 28 U.S.C. § 2254. Appointment of counsel, however, may occur at any stage of the case when “the interests of justice so require and such person is financially unable to obtain representation.” Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985); Rule 8(c) of the rules following 28 U.S.C. § 2254. See also 18 U.S.C. § 3006A. At such time that the rules require or the circumstances dictate, counsel will be appointed. At this time, however, the Court finds Petitioner’s motion to be premature and lacking in merit. Next, Petitioner seeks leave to conduct discovery in this case even though Respondent has yet to be served with the federal habeas petition. In a § 2254 action, a party is entitled to invoke the processes of discovery only if, and to the extent that, the habeas court in the exercise of its discretion and for good cause shown grants leave to do so. See Rule 6(a) of the rules following 28 U.S.C. § 2254. A party seeking discovery under Rule 6(a) must make specific factual allegations that establish good cause for permitting the requested discovery. Harris v. Johnson, 81 F.3d 535, 540 (5th Cir.1996). Petitioner’s motion is premature at this time as Respondent has yet to file any responsive pleadings in this case. See Porter v. Berghuis, No. 1:07-cv-781, 2008 WL 619397, at *1 (W.D. Mich. Mar. 4, 2008) (recognizing that motions for discovery and an evidentiary hearing are premature because the respondent has not filed an answer-response). The Court will be in a better position to consider any discovery requests once such responsive pleadings are filed. 2 Accordingly, IT IS ORDERED that Petitioner’s Motion to Appoint Counsel and Motion for Leave to Conduct Discovery (Doc. 3) are DENIED. THUS DONE AND SIGNED at Lafayette, Louisiana, this 28th day of December, 2016. 3

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