Hooper v. Blaisdell

Filing 33

ORDER granting to the extent as outlined: 31 Motion to Terminate Appointed Counsel; Petitioner shall proceed pro se; granting 31 Motion to Extend Time to Object/Respond re 11 Motion for Summary Judgment ( Follow up on Objection on 2/9/2010 for petitioner's intent; Follow up on Reply/Amended Petition on 3/9/2010.). So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Oliver Hooper v. Civil N o . 08-cv-426-JD

Warden, Northern New Hampshire Correctional Facility ORDER Petitioner, Oliver Hooper, seeks relief from his state court convictions pursuant to 28 U.S.C. § 2254. On July 3 1 , 2009,

while the Warden's motion for summary judgment was pending, Petitioner's retained counsel notified the court, by letter, that he had been suspended from practice, and the court deemed the letter to be an involuntary withdrawal from the case. Petitioner

moved for appointment of counsel and submitted financial forms to demonstrate his need for appointed counsel. His request for appointed counsel was granted, and Attorney Jorel V . Booker was appointed to represent Petitioner in this case on October 3 0 , 2009. An extension of time was granted, until January 1 8 , 2010, to respond to the Warden's motion for summary judgment. On December 1 7 , 2009, Petitioner filed a motion, pro s e , for appointment of new counsel, contending that Attorney Booker was not communicating with him. Attorney Booker filed a response,

explaining that he had visited Petitioner on December 1 8 , 2009, and, on the basis of that representation, the court denied the motion. Attorney Booker filed a response, on Petitioner's

behalf, to the Warden's motion for summary judgment on January 1 8 , 2010. On January 2 0 , 2010, Petitioner filed a motion, pro s e , to terminate Attorney Booker as his counsel. Petitioner represents that he has not been able to communicate with Attorney Booker, that he was not allowed to review the response to the Warden's motion for summary judgment before it was filed, and that he believes Attorney Booker is not looking out for his best interests. Petitioner asks to be permitted to proceed pro se if

new counsel is not appointed and asks for a six-month extension of time to develop a new petition for habeas relief. In response to Petitioner's motion to terminate him as appointed counsel, Attorney Booker takes issue with Petitioner's version of their relationship but does state: "It is clear that there is a breakdown in communication between M r . Hooper and Counsel that cannot be repaired . . . ." Therefore, because both Petitioner and Attorney Booker agree that the breakdown in communication between them is irremediable, the appointment of Attorney Booker in this case is terminated.

2

Petitioner's involvement in his case and his use of the prison law library to instruct his counsel for purposes of opposing summary judgment demonstrate that he is able to represent himself. Therefore, his request to proceed pro se is granted.

Conclusion For the foregoing reasons, Petitioner's motion to terminate appointed counsel (document n o . 31) is granted to the extent that: 1. Representation by Attorney Jorel V . Booker is

terminated; 2. 3. Petitioner shall proceed pro s e ; On or before February 9, 2010, Petitioner shall notify

the court whether he intends t o : a. Rely on the response to the Warden's motion for

summary judgment that was filed by Attorney Booker; b. Use the response filed by Attorney Booker but also

file a supplemental response to the motion for summary judgment; c. File a new and substitute response to the motion

for summary judgment, OR d. habeas relief. 3 File for leave to file an amended petition for

4.

On or before March 9, 2010, Petitioner shall file, in

accordance with his notice to the court, a substitute or supplemental response to the motion for summary judgment or a motion for leave to file an amended petition for relief under 28 U.S.C. § 2254, with a copy of the proposed amended petition attached. 5. If Petitioner fails to file a response, as outlined

here, or a motion for leave to amend on or before March 9, 2010, the court will address the Warden's motion for summary judgment with the response that has already been filed by appointed counsel.

SO ORDERED.

/s/ Joseph A. DiClerico, Jr. Joseph A . DiClerico, J r . United States District Judge January 2 6 , 2010 cc: Jorel Booker, Esq. Oliver Hooper Elizabeth Woodcock, Esq.

4