Smith v. Frakes

Filing 6

MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Proceed in Forma Pauperis (Filing No. 2 ) is granted. Petitioner's Motion to Appoint Counsel (Filing No. 4 ) is denied without prejudice to reassertion. The next step in this case is for the court to conduct a preliminary review of the habeas corpus petition in accordance with Rule 4 of the Rules Governing Section 2254 cases. The court will conduct this review in its normal course of business. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM E. SMITH,
Petitioner,
V.
SCOTT R. FRAKES,
Respondent.

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4:16CV3162

MEMORANDUM AND ORDER

Petitioner filed a Petition for Writ of Habeas Corpus (Filing No. 1) and a
Motion for Leave to Proceed in Forma Pauperis (Filing No. 2). Habeas corpus cases
attacking the legality of a person’s confinement require the payment of a $5.00 filing
fee. 28 U.S.C. § 1914(a). However, after considering Petitioner’s financial status as
shown in the records of this court (see inmate trust account statement at Filing No. 3),
provisional leave to proceed in forma pauperis will be granted and Petitioner is
relieved from paying the filing fee at this time. See 28 U.S.C. § 1915(a)(1).
Petitioner also filed a Motion to Appoint Counsel (Filing No. 4). “[T]here is
neither a constitutional nor statutory right to counsel in habeas proceedings; instead,
[appointment] is committed to the discretion of the trial court.” McCall v. Benson,
114 F.3d 754, 756 (8th Cir. 1997). 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). 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). The court
has carefully reviewed the record and finds there is no need for the appointment of
counsel at this time.

IT IS THEREFORE ORDERED that: Petitioner’s Motion for Leave to Proceed
in Forma Pauperis (Filing No. 2) is granted. Petitioner’s Motion to Appoint Counsel
(Filing No. 4) is denied without prejudice to reassertion. The next step in this case is
for the court to conduct a preliminary review of the habeas corpus petition in
accordance with Rule 4 of the Rules Governing Section 2254 cases. The court will
conduct this review in its normal course of business.
DATED this 14th day of November, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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