Stearns v. Schmidtt

Filing 7

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner Elliot Stearnss motion for the appointment of counsel (Docket No. 6 ) is DENIED without prejudice. IT IS FURTHER ORDERED that petitioner shall have to and including Friday, December 2, 2016, to comply with this Courts October 19, 2016 Order. IT IS FURTHER ORDERED that the Clerk of Court shall mail to petitioner a copy of this Courts October 19, 2016 Order, and a second copy of this Courts 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus form.. Signed by Magistrate Judge John M. Bodenhausen on 10/26/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELLIOT STEARNS,

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Petitioner,
v.
DAVE SCHMIDTT,
Respondent.

No. 4:16CV1584 JMB

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of petitioner Elliot Stearns for the
appointment of counsel. (Docket No. 6). The motion is premature, and will be denied without
prejudice at this time.
On October 6, 2016, petitioner filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

Therein, petitioner stated that he was presently confined in the Southeast

Missouri Mental Health Center after pleading not guilty by reason of insanity in state court in
Phelps County, Missouri. He raised four grounds for relief, most of which related to his entry of
a plea of not guilty by reason of insanity.
In an Order dated October 19, 2016, this Court noted that it was unclear whether
petitioner had a state court “conviction” that he intended to challenge, or whether he intended to
challenge the denial of a request for conditional or unconditional release. The Court explained
that petitioner needed to file, within thirty days, an amended petition to clarify what his claims
were. The Court’s Order clearly set forth what it was petitioner needed to do when filing such
amended petition. On October 24, 2016, petitioner filed the instant motion requesting the
appointment of counsel.

There is no constitutional or statutory right to counsel in habeas proceedings. McCall v.
Benson, 114 F.3d 754, 756 (8th Cir. 1997). While this Court has discretion to appoint counsel to
represent an indigent prisoner in a § 2254 proceeding if “the interests of justice so require,” 18
U.S.C. § 3006A(a)(2)(B), this Court cannot meaningfully exercise such discretion at this time
because it is unclear what claims petitioner intends to raise, and whether those claims are both
potentially meritorious and so complex as to warrant court-appointed counsel. See Abdullah v.
Norris, 18 F.3d 571, 573 (8th Cir. 1994) (explaining that when exercising its discretion to
appoint habeas counsel, a court should consider whether the petitioner’s claims are “frivolous or
clearly without merit,” the legal and factual complexity of the claims, and the petitioner’s ability
to investigate and present those claims).
The Court recognizes petitioner’s status as a civilly-committed person.

However,

petitioner has demonstrated himself to be able to communicate in writing, and to set forth simple
concepts. For example, in the petition, petitioner clearly set forth the name of the court in which
he was found not guilty by reason of insanity, the case number, and whether he had filed any
appeals. He also clearly and logically set forth that he was alleging ineffective assistance of
counsel based upon his entry of a plea of not guilty by reason of insanity. In the instant motion,
petitioner acknowledged his receipt of the Court’s Order, and logically explained that he was
seeking the appointment of counsel. After petitioner complies with this Court’s October 19,
2016 Order, he may renew his motion for the appointment of counsel, as appropriate. The Court
will, sua sponte, grant petitioner an additional fourteen days to file an amended petition in
accordance with this Court’s October 19, 2016 Order.
Therefore, for all of the foregoing reasons,

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IT IS HEREBY ORDERED that petitioner Elliot Stearns’s motion for the appointment
of counsel (Docket No. 6) is DENIED without prejudice.
IT IS FURTHER ORDERED that petitioner shall have to and including Friday,
December 2, 2016, to comply with this Court’s October 19, 2016 Order.
IT IS FURTHER ORDERED that the Clerk of Court shall mail to petitioner a copy of
this Court’s October 19, 2016 Order, and a second copy of this Court’s 28 U.S.C. § 2254 Petition
for Writ of Habeas Corpus form.
Dated this 26th day of October, 2016.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

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