Smith v. Bakewell et al

Filing 17

MEMORANDUM AND ORDER - Petitioner shall have until March 28, 2011, to file a motion for certificate of appealability and brief in support. In the event that Petitioner fails to file a motion and brief as set forth in this Memorandum and Order, the co urt will deny the issuance of a certificate of appealability without further notice. The Clerk of the court is directed to set a pro se case management deadline in this case with the following text: March 28, 2011: check for COA and separate brief and deny if none filed. Petitioner's Motion to Appoint Counsel (filing no. 16 ) is denied. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party) (AOA)

-PRSE Smith v. Bakewell et al

Doc. 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA KEVIN G. SMITH, ) ) Petitioner, ) ) v. ) ) ROBERT BAKEWELL, Warden, and ) ROBERT HOUSTON, Director, ) ) Respondents. ) 8:10CV278

MEMORANDUM AND ORDER

This matter is before the court on Petitioner's Motion to Appoint Counsel. (Filing No. 16.) "There 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) (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.) The court has carefully reviewed the record and finds that there is no need for the appointment of counsel at this time. It appears that Petitioner seeks the assistance of counsel in order to prepare a motion for certificate of appealability, which should have been filed no later than January 21, 2011. (Filing No. 15.) In light of this Memorandum and Order, the court will provide Petitioner with one additional opportunity to submit a motion for certificate of appealability. IT IS THEREFORE ORDERED that:

Dockets.Justia.com

1. Petitioner shall have until March 28, 2011, to file a motion for certificate of appealability and brief in support. 2. In the event that Petitioner fails to file a motion and brief as set forth in this Memorandum and Order, the court will deny the issuance of a certificate of appealability without further notice. 3. The Clerk of the court is directed to set a pro se case management deadline in this case with the following text: March 28, 2011: check for COA and separate brief and deny if none filed. 4. Petitioner's Motion to Appoint Counsel (filing no. 16) is denied.

DATED this 28th day of February, 2011. BY THE COURT: Richard G. Kopf United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court. 2