Saylor v. Wooten

Filing 13

MEMORANDUM AND ORDER regarding pending motions. 1. Saylor's Motion to Amend (Filing No. 2 ) and Motion to Permit Non-Conforming Petition or to Grant Extension (Filing No. 4 ) are granted to the extent consistent with this Memorandum and Orde r. Saylor is directed to file an amended petition for writ of habeas corpus within 30 days in accordance with this Memorandum and Order. Failure to comply with this Memorandum and Order will result in dismissal of this matter without further notic e. 2. The clerk of the court is directed to send to Saylor the Form AO 241 ("Petition for Relief From a Conviction or Sentence By a Person in State Custody"). 3. The clerk of the court is directed to set a pro se case management deadline i n this matter with the following text: January 26, 2018: Check for amended petition. 4. Saylor's Motion for Appointment of Counsel (Filing No. 3 ) and Motion for Copies (Filing No. 11 ) are denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with form)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES M. SAYLOR,
Petitioner,

8:17CV442

vs.
MEMORANDUM
AND ORDER

JEFF WOOTEN,
Respondent.

This matter is before the court on preliminary review of Petitioner James M.
Saylor’s Petition for Writ of Habeas Corpus (Filing No. 1), as well as Saylor’s
Motion to Amend (Filing No. 2), Motion for Appointment of Counsel (Filing No.
3), Motion to Permit Non-Conforming Petition or to Grant Extension (Filing No.
4), and Motion for Copies (Filing No. 11). The court will address the petition and
each motion in turn.
PRELIMINARY REVIEW
The court must conduct an initial review of Petitioner James M. Saylor’s
Petition for Writ of Habeas Corpus (Filing No. 1) to determine whether his claims
are potentially cognizable in federal court. A habeas corpus petition must
“substantially follow either the form appended to [the Rules Governing Section
2254 Cases in the United States District Courts], or a form prescribed by a local
district-court rule.” See Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts.
Here, Saylor acknowledges that he did not use the Form AO 241, Petition
for Writ of Habeas Corpus by a Person in State Custody. Saylor has filed a Motion
to Amend (Filing No. 2) and a Motion to Permit Non-Conforming Petition or to
Grant Extension (Filing No. 4), in which Saylor explains that he “was unaware that

the petition for a writ of habeas corpus needed to be filed on November 9, 2017, . .
. until basically four days before the deadline.” (Filing No. 2 at CM/ECF p.1.)
Saylor states that he did not have the proper forms nor adequate time to properly
prepare his habeas petition before having to send the petition to the court for filing
by the November 9th deadline. (Id.) Saylor, thus, asks the court for leave to file
an amended habeas petition. (Filing No. 2; Filing No. 4.)
Because Saylor’s petition is insufficient, the court will not act upon it.
However, the court will grant Saylor’s request for additional time to amend his
petition. (Filing No. 2; Filing No. 4.) Saylor shall have an additional 30 days in
which to file an amended petition for writ of habeas corpus.
MOTION FOR APPOINTMENT OF COUNSEL
Saylor has also filed a Motion for Appointment of Counsel. (Filing No. 3).
“[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.

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In the event the court does not appoint counsel, Saylor asks the court for an
attorney referral as he could afford to pay “a reasonable fee.” (Filing No. 3 at
CM/ECF p.1.) The court will not make a specific referral but will inform Saylor
that persons in need of assistance from a lawyer may contact the Nebraska State
Bar Association’s lawyer referral service. The service is at 635 South 14th Street,
P.O. Box 81809, Lincoln, Nebraska 68501-1809. The telephone number is (402)
475-7091 ext. 132, and the fax number is [phone].
MOTION FOR COPIES
Saylor also asks the court to send him “copies of all documents currently in
the court file or elsewhere at the court, along with the additional documents before
the Court as a result of Petitioner’s latest filings, and that such be provided free of
charge.” (Filing No. 11.) This court’s local rules provide, in relevant part:
(f) Official Record. The clerk does not maintain a paper court file in
any case unless required by law or local rule. When a document is
filed electronically, the official record is the electronic recording of
the document as stored by the court, and the filing party is bound by
the document as filed.
(1) Documents Filed Nonelectronically. The official record
also includes documents filed nonelectronically under local
rule.
(2) Original Documents Scanned and Discarded. The clerk
scans and discards original documents brought to the clerk for
filing unless the document’s size or nature requires that it be
kept in a paper format. An attorney who wishes to have an
original document returned after the clerk scans and uploads it
to the System may, before submitting the document to the clerk,
ask the assigned judge for written authorization for the
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document’s return. Authorization is granted on a case-by-case
basis. The court does not allow blanket authorizations for the
return of all original documents filed by an attorney or office.
(3) Copies of Filings. A party who requests a copy of a paper
document submitted for filing must, at the time of filing, supply
the clerk’s office with the copy and, if the return is to be made
by mail, a self-addressed, stamped envelope.
NECivR 5.1(f).
Here, Saylor did not ask the undersigned judge for the return of his original
documents prior to submitting them to the clerk’s office for filing. In addition,
Saylor did not provide a self-addressed, stamped envelope for the return of his
original documents. In addition, Saylor did not submit payment for the cost of
making copies, and he does not have the right to receive copies of documents
without payment, even if the court granted him leave to proceed in forma pauperis.
See 28 U.S.C. § 1915(a)(1) (providing that a court may authorize the
commencement of a suit “without prepayment of fees or security therefor”)
(emphasis added). If Saylor requires copies of court documents, he should contact
this court’s clerk’s office to determine the proper method for requesting and paying
for copies.
IT IS THEREFORE ORDERED that:
1.
Saylor’s Motion to Amend (Filing No. 2) and Motion to Permit NonConforming Petition or to Grant Extension (Filing No. 4) are granted to the extent
consistent with this Memorandum and Order. Saylor is directed to file an amended
petition for writ of habeas corpus within 30 days in accordance with this

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Memorandum and Order. Failure to comply with this Memorandum and Order
will result in dismissal of this matter without further notice.
2.
The clerk of the court is directed to send to Saylor the Form AO 241
(“Petition for Relief From a Conviction or Sentence By a Person in State
Custody”).
3.
The clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: January 26, 2018: Check for
amended petition.
4.
Saylor’s Motion for Appointment of Counsel (Filing No. 3) and
Motion for Copies (Filing No. 11) are denied.
Dated this 26th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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