Harris v. Gage

Filing 17

MEMORANDUM AND ORDER - Petitioner's "Motion for Leave to Amend" (Filing No. 16 ) is granted. Petitioner shall file an amended petition for writ of habeas corpus that clearly presents all of his claims for relief by May 9, 2017. Petiti oner is warned that the amended petition will supersede, not supplement, his initial habeas petition. Failure to file an amended petition within the time set by the court will result in dismissal of this matter without further notice to Petitioner. F ollowing the filing of the amended petition, the court will enter a new order progressing this matter to disposition. Petitioner's "Motion for Appointment of Counsel" (Filing No. 15 ) is denied without prejudice to reassertion. The clerk's office is directed to set the following case management deadline: May 9, 2017: check for Amended Petition. 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
MICHAEL E. HARRIS,
Petitioner,

8:16CV442

vs.
MEMORANDUM
AND ORDER

BRIAN GAGE,
Respondent.

This matter is before the court on Petitioner’s “Motion for Leave to Amend”
his habeas petition (Filing No. 16) and “Motion for Appointment of Counsel”
(Filing No. 15).
Under Federal Rule of Civil Procedure 15, a court should grant leave to
amend freely “when justice so requires” and “to promote justice.” Plymouth
County, Iowa v. Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2014). There is no
absolute right to amend. Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th
Cir. 2012). Whether to grant a motion for leave to amend is within the sound
discretion of the district court. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497
(8th Cir. 2008). These rules apply equally to a motion to amend petition for writ of
habeas corpus. Moore–El v. Luebbers, 446 F.3d 890, 901-02 (8th Cir. 2006). Upon
careful consideration, the court will grant Petitioner leave to file an amended
habeas petition. Petitioner is warned that he must identify in the amended petition
the factual allegations underlying his alleged “newly discovered evidence”
claim(s). His vague, conclusory allegations thus far are insufficient.
“[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 “Motion for Leave to Amend” (Filing No. 16) is granted.
Petitioner shall file an amended petition for writ of habeas corpus that clearly
presents all of his claims for relief by May 9, 2017. Petitioner is warned that the
amended petition will supersede, not supplement, his initial habeas petition. Failure
to file an amended petition within the time set by the court will result in dismissal
of this matter without further notice to Petitioner. Following the filing of the
amended petition, the court will enter a new order progressing this matter to
disposition.
2.
Petitioner’s “Motion for Appointment of Counsel” (Filing No. 15) is
denied without prejudice to reassertion.
3.
The clerk’s office is directed to set the following case management
deadline: May 9, 2017: check for Amended Petition.
Dated this 10th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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