King v. Houston et al

Filing 17

MEMORANDUM AND ORDER - The Motion for Extension 12 filed by Donnell King is granted. King shall file his brief in response to the respondents brief nolater than 60 days after the respondents file their Supplemental Designation of Records in Support of the Answer. King's Motion for Appointment of Counsel 13 is denied. King's Motion for Leave for Discovery 14 is denied as moot. Ordered by Senior Judge Warren K. Urbom. (Copy mailed/e-mailed to pro se party)(KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONNELL KING,

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Petitioner,
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v.
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ROBERT P. HOUSTON, Director,
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and DENNIS BAKEWELL, Warden, )
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Respondents.
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4:11CV3067
MEMORANDUM
AND ORDER ON PETITIONER’S
MOTION FOR EXTENSION,
MOTION FOR APPOINTMENT
OF COUNSEL, AND MOTION
FOR LEAVE FOR DISCOVERY

This matter is before the court on a Motion for Extension (filing no. 12), a
Motion for Appointment of Counsel, (filing no. 13), and a Motion for Leave for
Discovery (filing no. 14) all filed by the petitioner, Donnell King. The respondents
have filed a Response to Petitioner’s Motions. (Filing No. 15.) The court will
address each motion in turn.
I. Motion for Extension
In his Motion for Extension , Donnell King asks the court to provide him with
60 additional days to file a brief in response to the respondents’ Brief in Support of
Respondents’ Answer. (Filing No. 12.) The respondents do not object to King’s
request for time as stated in their Response to Petitioner’s Motions (filing no. 15.);
therefore, King’s motion for extension of time is granted.
II. Motion to Appoint Counsel
King has also filed a Motion for Appointment of Counsel. (Filing No. 13.)
“[T]here is neither a constitutional nor statutory right to counsel in habeas
proceedings; instead, [appointment of counsel] is committed to the discretion of the
trial court.” McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997) (citations omitted).

As a general rule, counsel will not be appointed unless the case is unusually complex
or the petitioner’s ability to investigate and articulate the claims is unusually impaired
or an evidentiary hearing is required. See, e.g., Morris v. Dormire, 217 F.3d 556,
558-59 (8th Cir. 2000), cert. denied, 531 U.S. 984 (2000); Hoggard v. Purkett, 29
F.3d 469, 471 (8th Cir. 1994) (citations omitted); see also Rule 8(c) of the Rules
Governing Section 2254 Cases in the United States District Courts (requiring
appointment of counsel if an evidentiary hearing is warranted). Upon review of the
pleadings and King’s motion, there is no need for the appointment of counsel at this
time.
III. Motion for Discovery
In his Motion for Leave for Discovery, King seeks trial transcripts, a bill of
exceptions and exhibits. (Filing No. 14.) The respondents have agreed to file these
documents in a filing entitled “Supplemental Designation of Records in Support of
the Answer.” (Filing No. 15.) Because the respondents have agreed to file the
documents King seeks in discovery, his Motion for Discovery is moot.
IT IS THEREFORE ORDERED that:
1.

The Motion for Extension (filing no. 12) filed by Donnell King is
granted. King shall file his brief in response to the respondents’ brief no
later than 60 days after the respondents file their “Supplemental
Designation of Records in Support of the Answer.”

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2.

King’s Motion for Appointment of Counsel (filing no. 13) is denied.

3.

King’s Motion for Leave for Discovery (filing no. 14) is denied as moot.

Dated August 22, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge

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