SHELTON v. HOLLINGSWORTH

Filing 15

OPINION filed. Signed by Chief Judge Jerome B. Simandle on 8/31/2015. (drw)n.m.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STEVEN RAY SHELTON,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 15-1249 (JBS)

v.
JORDAN HOLLINGSWORTH,

OPINION
Respondent.

APPEARANCES:
Steven Ray Shelton, Petitioner Pro Se
# 06660-043
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
Irene E. Dowdy, Assistant U.S. attorney
Office of the U.S. Attorney
401 Market Street, Fourth Floor
P.O. Box 2098
Camden, New Jersey
Attorney for Respondent, Jordan Hollingsworth

SIMANDLE, Chief Judge:
INTRODUCTION
This matter comes before the Court on pro se Petitioner Steven
Ray Shelton’s (“Petitioner”) motion for the appointment of pro bono
counsel and extension of time to file a traverse (Docket Entry 12).
Respondent United States of America opposes the motion for
appointment of counsel. (Docket Entry 13). These motions are being
decided on the papers pursuant to Fed. R. Civ. Pro. 78(b). For the
reasons set forth below, Petitioner’s motion for the appointment of

counsel is denied, and his motion for an extension of time is
granted.
Procedural History
Petitioner filed a petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 challenging the Bureau of
Prisons’(“BOP”) calculation of his sentence. (Docket Entry 1). On
February 25, 2015, this Court ordered Respondent to answer the
petition within 45 days. (Docket Entry 2).
On April 8, 2015, Petitioner filed a Motion for Default
Judgment. (Docket Entry 3). Respondent filed his answer to the
petition, (Docket Entry 4), as well as his opposition to
Plaintiff’s motion, (Docket Entry 5), on April 13, 2015. On April
22, 2015, Petitioner filed a Motion for Default, Motion for
Sanctions or, in the alternative, to strike portions of
Respondent’s answer. (Docket Entry 6). Respondent filed his
opposition to those motions on May 4, 2015. (Docket Entry 8).
Simultaneously with his second set of motions, Petitioner filed a
motion for the appointment of pro bono counsel and for an extension
of time to file a traverse. (Docket Entry 7). Respondent did not
file an objection to those motions. (See generally Docket Entry 8).
By Opinion and Order dated May 18, 2015, this Court denied all
of Petitioner’s motions except for his request for additional time
in which to submit his traverse. (Docket Entries 9 and 10). The
Court granted Petitioner an additional thirty (30) days in which to
file his traverse. The Court additionally directed the Clerk to

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provide Plaintiff with an application to proceed in forma pauperis
to submit for consideration in connection with any future motions
for the appointment of counsel. (Docket Entries 9 and 10).
Petitioner filed the instant motion for the appointment of
counsel on June 8, 2015, (Docket Entry 12), accompanied by an
application to proceed in forma pauperis, (Docket Entry 11).
Petitioner additionally requested an extension of time in which to
file his traverse. (Docket Entry 12). Respondent filed a timely
objection to the request for counsel. (Docket Entry 13).
DISCUSSION
There is no Sixth Amendment right to appointment of counsel in
habeas proceedings. See Coleman v. Thompson, 501 U.S. 722, 752
(1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“our
cases establish that the right to appointed counsel extends to the
first appeal of right, and no further”); Parham v. Johnson, 126
F.3d 454, 456–57 (3d Cir. 1997) (holding that there is no statutory
or constitutional right of counsel conferred upon indigent civil
litigants); Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991),
cert. denied, 503 U.S. 988 (1992) (“there is no ‘automatic’
constitutional right to counsel in federal habeas corpus
proceedings), superseded on other grounds by statute, 28 U.S.C. §
2254(d). The Court may appoint counsel in a § 2241 proceeding where
the “interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
“Under these guidelines, the district court must first decide
if the petitioner has presented a nonfrivolous claim and if the

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appointment of counsel will benefit the petitioner and the court.”
Reese, 946 F.2d at 263-64. Factors influencing a court's decision
include:“‘(i) the likelihood of success on the merits; (ii) the
complexity of the legal issues raised by the complaint; and (iii)
the ability of the prisoner to investigate and present the case.’”
Neeld v. New Jersey, 2012 WL 603293, *1 (D.N.J. Feb. 22, 2012)
(quoting Paul v. Attorney Gen. of State of N.J., 1992 WL 184358, *1
(D.N.J. July 10, 1992)).
Petitioner asserts he is entitled to habeas relief by virtue
of the fact that the BOP failed to run his federal sentence
concurrently with his sentence imposed by the State of Mississippi.
(Docket Entry 1 ¶ 8). He has submitted an application to proceed in
forma pauperis accompanied by an affidavit of indigency, which
indicates Petitioner is unable to afford an attorney on his own.
(Docket Entry 11). Furthermore, the Court concluded in reviewing
the petition pursuant to Habeas Rule 4 that it did not plainly
appear from the face of that petition and attached exhibits that
Petitioner was not entitled to relief. See 28 U.S.C. § 2254 Rule 4
(made applicable through Rule 1 (b)); Docket Entry 2. Therefore the
Court will presume for the present purposes only that his claims
have some merit. The Court must now determine whether the
appointment of counsel will benefit Petitioner and the Court.
The Court finds that the issues raised by Petitioner are
neither factually nor legally complex so as to necessitate the
appointment of counsel. Whether the BOP’s denial of nunc pro tunc

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designation for Petitioner’s federal sentence was an abuse of its
discretion can be determined from the record provided by the
parties without testimony, therefore the case is not likely to
depend heavily on credibility determinations. Likewise, there is
little, if any, need for further discovery to be undertaken by
Petitioner.
Moreover, Petitioner has ably and coherently presented his
claims to this Court, in spite of his assertions that he only has a
high school education with “limited experience” in legal and habeas
matters. (Docket Entry 14 ¶¶ 4(a)-(b)).1 He has been an active
participant in the litigation, and nothing in his many filings
indicates he cannot continue to be one without the assistance of
counsel. His assertion that counsel is needed to prevent him from
being “manipulated by the BOP,” (Docket Entry 14 at 3), has no
factual support in the record and does not warrant counsel.2

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Petitioner did not address the factors for the appointment of
counsel in his moving papers, in spite of the fact that this
Court’s previous Opinion and Order instructed him to do so. (See
Docket Entry 9, slip op. at 6-7 & n.2). Any future motions must
have all of Petitioner’s arguments set forth in the moving
papers, as any arguments raised for the first time in response
papers are usually deemed waived. Anspach v. City of Phila., 503
F.3d 256, 259 n.1 (3d Cir. 2007) (observing that absent
compelling circumstances, “failure to raise an argument in one's
opening brief waives it.”).
2 Petitioner states that he has previously been subject to
retaliation by BOP officials for pursuing a separate, unrelated
issue, including the withholding of his mail. (Docket Entry 14
at 2). There is no indication from Petitioner that he is
currently being denied access to this Court, and indeed his
active participation in this matter indicates that he is not
facing any such impediment. To the extent Petitioner wishes to
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As Petitioner has not established facts sufficient to
establish the appointment of counsel is in the interests of
justice, his motion for the appointment of pro bono counsel is
denied at this time. Petitioner shall have thirty (30) days from
the date of this Opinion and Order to submit his traverse. No
further extensions of time will be granted absent good cause.
CONCLUSION
For the above stated reasons, Petitioner’s motion for the
appointment of counsel is denied. An accompanying Order will be
entered.

August 31, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

pursue a civil rights claim, he must do so in a separate action
filed pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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