Kelly v. Cassady

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioners Motions to Appoint Counsel (Docket Nos. 6 and 11) are DENIED. If the Court later determines that counsel is necessary, the appropriate order will be issued. IT IS FURTHER ORDERED that Petitioners Motion for Judgment of Acquittal Notwithstanding the Verdict, Vacation of Sentence, or, in the Alternative, a New Trial (Docket No. 17) is DENIED AS MOOT. Signed by Magistrate Judge Terry I. Adelman on 2/13/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KEITH L. KELLY,
Petitioner,
vs.
JAY CASSADY,
Respondent.

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Case No. 4:13CV01231 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motions for Appointment of Counsel
(Docket Nos. 6 and 11) and for Judgment of Acquittal Notwithstanding the Verdict, Vacation of
Sentence, or, in the Alternative, a New Trial (Docket No. 17). The parties consented to the
jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
On June 21, 2013, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254 in federal court. On September 27, 2013, Respondent filed a Response to Order to Show
Cause.
“[T]here is neither a constitutional nor statutory right to counsel in habeas proceedings…”
McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). In order to determine whether
appointment of counsel is appropriate, the court must consider “the factual and legal complexity
of the case, and the petitioner’s ability both to investigate and to articulate his claims without
court appointed counsel.” Id. (citations omitted). In the instant case, Petitioner raises four
grounds for habeas relief in his Petition. In the Traverse, Petitioner thoroughly discusses the
grounds, including legal argument. A review of the Petition shows Petitioner’s grounds do not

appear to be factually or legally complex. Further, review of the Petition and Traverse
demonstrates that Petitioner is able to articulate his claims in a clear, concise manner and support
his allegations with case law. Because Petitioner has demonstrated an ability to adequately
present his claims without an attorney, his motions for appointment of counsel will be denied at
this time. Likewise, a review of the file shows the materials and exhibits entered into the record
to be sufficient to determine Petitioner’s claims.
In his Motion for Judgment of Acquittal Notwithstanding the Verdict, Vacation of
Sentence, or, in the Alternative, a New Trial, Petitioner merely requests the Court to grant him
the relief sought in his pending petition. Because the matter is before the Court on the pending
petition, the motion is an extraneous pleading.
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motions to Appoint Counsel (Docket Nos.
6 and 11) are DENIED. If the Court later determines that counsel is necessary, the appropriate
order will be issued.
IT IS FURTHER ORDERED that Petitioner’s Motion for Judgment of Acquittal
Notwithstanding the Verdict, Vacation of Sentence, or, in the Alternative, a New Trial (Docket
No. 17) is DENIED AS MOOT.
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this

13th

day of February, 2013. .

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