Schillinger v. NH State Prison, Warden

Filing 47

ORDER granting 3 Motion to Appoint Counsel; granting 16 Motion to Appoint Counsel; denying 29 Motion to add Exhausted Claim and Correct Printed Typed Issue; granting in part and denying in part 35 Motion to Extend Time; denying 36 Motion for 3 Subpoena Forms; denying 39 Motion for Immediate Release; denying 45 Motion for Expansion of Record; denying 46 Motion to Add Exhibits 1, 2, 3 and Suspend Sentence Release. Counsel to be appointed. Deadline for appointed counsel to demonstrate exhaustion is 120 days from date of this order. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Greg Schillinger
v.

Civil No. 12-cv-423-JL

New Hampshire State Prison Warden

O R D E R
Before the court are the following motions:
•

two motions seeking appointment of counsel (doc. nos. 3
and 16);

•

a motion to extend time to file documents demonstrating
exhaustion of state court remedies and requesting
subpoenas (doc. no. 35);

•

a motion to amend (doc. no. 29) the § 2254 petition;

•

a motion requesting subpoenas (doc. no. 36);
a motion for “immediate release” (doc. no. 39);

•
•

I.

a motion to expand the record (doc. no. 45); and
a motion to add exhibits and suspend sentence (doc. no.
46).

Appointment of Counsel (doc. nos. 3 and 16)
Schillinger seeks the appointment of counsel in each of two

motions (doc. nos. 3 and 16).
duplicative.

The motions are essentially

This court has authority, under the Criminal

Justice Act (“CJA”), 18 U.S.C. § 3006A, to provide representation
for any financially eligible person seeking relief under 28

U.S.C. § 2254, if the court determines that the interests of
justice require representation.

See 18 U.S.C. § 3006A(a)(2)(B).

Schillinger is eligible for an appointment of counsel under
18 U.S.C. § 3006A(a)(2).

The court has further reviewed the

petition and Schillinger’s numerous filings.

Schillinger has

demonstrated difficulty marshaling the exhibits he needs to
litigate his § 2254 petition pro se, and to express his claims
succinctly.

The interests of justice require an appointment of

counsel for Schillinger.

Therefore, both motions to appoint

counsel (doc. nos. 3 and 16) are granted, and the clerk is
directed to find counsel willing and able to represent
Schillinger, consistent with this court’s CJA plan.
Appointed counsel is specifically directed to review the
record in this case and in Schillinger’s state court proceedings,
and to file within 120 days:
(1) an amended federal habeas petition, including as
exhibits thereto, documents derived from the NHSC record
demonstrating that Schillinger has exhausted his state court
remedies on each claim asserted in his amended petition, as
required by this order, by previous orders of this court
(doc. nos. 26 and 28), see also 28 U.S.C. § 2254(b)(1);
(2) a motion to drop any unexhausted claims, acknowledging
that Schillinger will likely lose the ability to raise any
foregone claims in a successive habeas petition, see 28
U.S.C. § 2244(b); and/or
(3) a motion to stay Schillinger’s § 2254 petition,
asserting that Schillinger intends to return to the state

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courts to exhaust state remedies as to each federal claim
asserted in the § 2254 petition.
II.

Motion to Extend Time and for Subpoenas (doc. no. 35)
Schillinger has moved for an extension of time to show that

he has exhausted his state court remedies, and he has combined
with that motion a request for subpoenas.

The court grants in

part and denies in part Schillinger’s motion (doc. no. 35).

The

motion is granted to the extent that the deadline by which
Schillinger, through appointed counsel, shall file documents to
demonstrate exhaustion, is extended until 120 days from the date
of this order.

The motion is denied in all other respects.

III. Remaining Motions (doc. nos. 29, 36, 39, 45 and 46)
Schillinger’s motion for immediate release (doc. no. 39)
seeks information regarding the status of this petition, as well
as an order granting his petition in light of “structural error”
in his state criminal case.

The respondent has not been served;

the petition remains subject to dismissal until Schillinger
demonstrates exhaustion of state remedies as to each claim
asserted therein; and there is a substantial question as to
whether Schillinger’s petition is time-barred.

Granting

Schillinger’s request for immediate release would be, to say the

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least, premature at this time.

Accordingly, that motion is

denied (doc. no. 39).
Schillinger has also filed a motion (doc. no. 36) seeking
subpoenas from the clerk that he intends to serve to obtain
documents relevant to his § 2254 petition.

The appointment of

counsel through this order moots any need for the clerk to issue
subpoenas.

Accordingly, the motion for subpoenas is denied.

In light of this order appointing counsel for Schillinger,
the court denies the remaining motions pending in this action,
specifically, the motion to amend the petition (doc. no. 29), the
motion to expand the record (doc. no. 45), and the motion to add
exhibits and to suspend Schillinger’s sentence maximum and
minimum (doc. no. 46).

Those motions, to the extent that they

seek either to amend the petition, to add exhibits, or to expand
the record, are denied without prejudice to refiling by counsel
for Schillinger, after counsel appears in this action.
Conclusion
Schillinger’s motion seeking an extension of time and
requesting subpoenas (doc. no. 35), is granted in part and denied
in part.

The motion is granted to the extent that court extends

until 120 days from the date of this order, the deadline for

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Schillinger, through appointed counsel, to demonstrate
exhaustion.

The motion is denied in all other respects.

Schillinger’s motions to appoint counsel (doc. nos. 3 and
16) are granted, and the clerk is directed to identify counsel
willing and able to represent Schillinger in his § 2254 petition,
consistent with this court’s CJA plan.
The remaining pending motions (doc. nos. 29, 36, 39, 45 and
46) are denied.

To the extent that those motions seek to amend

the petition, to add exhibits, and to expand the record, they are
denied without prejudice to refiling after counsel appears in
this action.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: April 30, 2013
cc:

Greg Schillinger, pro se

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