Wilson v. Franks
Filing
6
MEMORANDUM AND ORDER - Petitioner's request to proceed IFP (Filing No. 2 ) is denied. Petitioner must pay the $5.00 filing fee within 30 days. Petitioner is warned that if the fee is not paid as required, the court may dismiss this case wi thout further notice. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: January 2, 2018: deadline for Petitioner to pay $5.00 filing fee. No further review of this case will take place until the filing fee is paid. Petitioner's Motion to Appoint Counsel (Filing No. 4 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party; e-mailed to Finance) (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIMOTHY W. WILSON,
Petitioner,
4:17CV3155
vs.
MEMORANDUM
AND ORDER
SCOTT FRANKS,
Respondent.
This matter is before the court on Petitioner’s Motion for Leave to Proceed
in Forma Pauperis (“IFP”) (Filing No. 2) and Motion for Counsel (Filing No. 4).
MOTION TO PROCEED IFP
Habeas corpus cases attacking the legality of a person’s confinement require
the payment of a $5.00 fee. 28 U.S.C. § 1914(a). The court has reviewed the
application to proceed IFP pursuant to 28 U.S.C. § 1915(a)(1)-(2). Petitioner’s
trust account information shows that Petitioner’s account contained an average
monthly balance of $100 or more for the six-month period immediately preceding
the filing of the petition. (Filing No. 3.) Thus, the court concludes that Petitioner
must be required to pay the $5.00 filing fee because he has the financial ability to
do so. See 28 U.S.C. § 1915(a). No further review of this case will take place until
the fee is paid.
MOTION FOR COUNSEL
“[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:
1.
Petitioner’s request to proceed IFP (Filing No. 2) is denied.
2.
Petitioner must pay the $5.00 filing fee within 30 days. Petitioner is
warned that if the fee is not paid as required, the court may dismiss this case
without further notice.
3.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: January 2, 2018: deadline for
Petitioner to pay $5.00 filing fee.
4.
No further review of this case will take place until the filing fee is
paid.
5.
Petitioner’s Motion to Appoint Counsel (Filing No. 4) is denied
without prejudice to reassertion.
Dated this 1st day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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