Allee v. Warden of USP McCreary et al

Filing 15

MEMORANDUM AND ORDER - Petitioner's Motion for Appointment of Counsel (filing no. 12 , part 1) is denied without prejudice to reassertion. Petitioner's Motion to be Moved (filing no. 12 , part 2) is denied. Petitioner shall have thirty (3 0) days from the date of this order to file a brief in opposition to the motion to dismiss. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: June 14, 2018: check for Petitioner's brief in opposition to motion to dismiss. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUSTIN JAMES ALLEE,
Petitioner,

8:17CV455

vs.
SCOTT R. FRAKES,

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on Petitioner’s motion for appointment of
counsel and motion to be moved to the custody of the Nebraska Department of
Correctional Services pending resolution of this matter. (Filing No. 12, Parts 1 &
2.) In addition to Petitioner’s motions, the court will also address matters of case
progression in light of Respondent’s recently-filed Motion to Dismiss. (See Filing
No. 13.)
A. Motion for Appointment of 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, 55859 (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. Petitioner’s
motion is denied without prejudice to reassertion.

B. Motion to Be Moved
Petitioner asks this court “to order the State of Nebraska to take custody of
[him] on a temporary writ of prosequendum to present his case” as he is presently
incarcerated “miles away” in the United States Penitentiary McCreary in
Kentucky. (Filing No. 12 at CM/ECF pp.1–3.) “A federal court has the power to
issue a writ of habeas corpus ad prosequendum in order to bring a prisoner from
one jurisdiction to another when it is necessary to bring the prisoner into court to
prosecute, for hearings or to testify.” United States v. Dimmick, 82 F. Supp. 3d
866, 868 (N.D. Iowa 2015) (citing Munz v. Michael, 28 F.3d 795, 798 n. 3 (8th
Cir.1994); 28 U.S.C. § 2241(c)(5)). Petitioner does not cite to, nor is the court
aware of, any authority requiring or permitting federal district courts to order a
State to accept custody of a federal prisoner simply to facilitate the prisoner’s
litigation of a pending habeas corpus petition. In any case, the court finds
Petitioner’s request to be moved to the custody of the State of Nebraska is not
supported or warranted by the record and is, therefore, denied.
C. Case Progression
Respondent filed a Motion to Dismiss on May 9, 2018. (Filing No. 13.) A
motion to dismiss was not one of the responses specifically enumerated in the
court’s progression order (filing no. 9) entered upon initial review of the petition,
but it is a response permitted under the Rules Governing Section 2254 Cases. See
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts (where petition is not dismissed upon preliminary review, judge required
“to order the respondent to file an answer, motion, or other response”); see also
Ebert v. Clarke, 320 F. Supp. 2d 902, 906 n.9 (D. Neb. 2004) (recognizing attorney
general’s practice in § 2254 cases of filing motions to dismiss after respondent
ordered on initial review to answer or otherwise respond, including motions to
dismiss based on successive petition grounds). Accordingly, the court shall grant

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Petitioner thirty days from the date of this order to file and serve a brief in
opposition to Respondent’s motion to dismiss.
IT IS THEREFORE ORDERED that:
1.
Petitioner’s Motion for Appointment of Counsel (filing no. 12, part 1)
is denied without prejudice to reassertion.
2.

Petitioner’s Motion to be Moved (filing no. 12, part 2) is denied.

3.
Petitioner shall have thirty (30) days from the date of this order to file
a brief in opposition to the motion to dismiss.
4.
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: June 14, 2018: check for Petitioner’s
brief in opposition to motion to dismiss.
Dated this 15th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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