Turner v. USA

Filing 26

MEMORANDUM AND ORDER re: 23 MOTION to Appoint Counsel filed by Petitioner Donald R. Turner, Jr., 20 MOTION to Strike 13 Response to Order to Show Cause, 11 Supplemental, 16 Memorandum in Support of Motion filed by Petitioner Donald R. Turner, Jr., 24 MOTION to Supplement 16 Memorandum in Support of Motion filed by Petitioner Donald R. Turner, Jr., 21 MOTION for Leave to File Amended Petition filed by Petitioner Donald R. Turner, Jr., 25 MOTION for Leave to Fi le Notice of Supplemental Authority filed by Petitioner Donald R. Turner, Jr. IT IS HEREBY ORDERED that Petitioner's Motion to Strike 20 , construed as a motion to withdraw, is GRANTED. IT IS FURTHER ORDERED that Petitioner's Motion Seekin g Leave to Amend 21 is GRANTED. The Clerk of Court shall detach and docket the amended petition, which was submitted as an attachment to the motion for leave. IT IS FURTHER ORDERED that Petitioner's Request for Appointment of Counsel 23 is D ENIED without prejudice. IT IS FURTHER ORDERED that Petitioner's Motion for Leave to Supplement 24 is GRANTED. IT IS FURTHER ORDERED that Petitioner's Request for Leave to File Notice of Supplemental Authority 25 is GRANTED. IT IS FINAL LY ORDERED that within thirty (30) day of the date of this Order, Respondent shall file its response to the additional claim raised in the amended § 2255 petition. Petitioner shall have twenty-one (21) days to reply. (Response to Court due by 9/13/2019.) Signed by District Judge John A. Ross on 08/14/19. (CMH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DONALD R. TURNER, JR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:16-CV-268 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motion to Strike (Doc. No. 20); Motion
Seeking Leave to Amend (Doc. No. 21); Request for Appointment of Counsel (Doc. No. 23);
Motion for Leave to Supplement (Doc. No. 24); and Request for Leave to File Notice of
Supplemental Authority (Doc. No. 25).
Motion to strike
Petitioner asks that his Amended Resistance to Government’s Response (Doc. No. 11);
Additional Authority (Amended Resistance) to Government’s Response (Doc. No. 13); and
Memorandum of Law in Light of 28 U.S.C. § 2255 (Doc. No. 16) be stricken. Petitioner states it
was not his intent to replace any of the arguments asserted in his original § 2255 petition (Doc.
No. 10), nor abandon any claim asserted therein by way of these filings. The Court interprets this
as a request to permit Petitioner to withdraw these filings, which will be granted.
Motion for leave to amend
Petitioner seeks to amend his § 2255 petition to include an additional issue and has
included with his motion a proposed amended pleading that includes each and every claim he
wishes to bring. The Court will grant Petitioner’s motion. Petitioner is advised that his amended

complaint is now the operative complaint in this matter. The Court will direct the Government to
file a response to Petitioner’s additional ground for relief in Issue Eight of the amended petition.
Request for appointment of counsel
After review of the record in this matter, the Court declines to appoint counsel to
Petitioner at this time. There is no constitutional or statutory right to appointed counsel in civil
cases. Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors, including (1)
whether the petitioner has presented nonfrivolous allegations supporting his or her prayer for
relief; (2) whether the petitioner will substantially benefit from the appointment of counsel; (3)
whether there is a need to further investigate and present the facts related to the petitioner’s
allegations; and (4) whether the factual and legal issues presented by the action are complex. See
Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005. After
considering these factors, the Court finds the facts and legal issues involved in this action are not
so complicated that the appointment of counsel is warranted at this time. As such, Petitioner’s
motion for appointment of counsel will be denied, without prejudice.
Motion for leave to supplement
Petitioner seeks leave to supplement his reply to Section B of the Government’s response
to his § 2255 Petition. The Court will grant Petitioner’s motion.
Request for leave to file supplement
In his latest filing, Petitioner requests leave to file supplemental authority in support of
his § 2255 petition. Upon consideration, the Court will grant his request as directed to his now
amended petition.
Accordingly,

IT IS HEREBY ORDERED that Petitioner’s Motion to Strike [20], construed as a
motion to withdraw, is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Motion Seeking Leave to Amend [21] is
GRANTED. The Clerk of Court shall detach and docket the amended petition, which was
submitted as an attachment to the motion for leave.
IT IS FURTHER ORDERED that Petitioner’s Request for Appointment of Counsel
[23] is DENIED without prejudice.
IT IS FURTHER ORDERED that Petitioner’s Motion for Leave to Supplement [24] is
GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Request for Leave to File Notice of
Supplemental Authority [25] is GRANTED.
IT IS FINALLY ORDERED that within thirty (30) day of the date of this Order,
Respondent shall file its response to the additional claim raised in the amended § 2255 petition.
Petitioner shall have twenty-one (21) days to reply.

Dated this 14th day of August, 2019.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE