CHAPMAN v. HERRON
Filing
24
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 8/2/2012, that Petitioner's Motion for Appointment of Counsel (Docket Entry 2 ), Motion for an Order (Injunctive) Compelling Respondant's (sic) Reply (Docket Entry 15 ), and Motion to Strike Respondants (sic) Reply Answer on Merits of Petition for Writ of Habeas Corpus (Docket Entry 21 ) are DENIED. The Court will treat Petitioner's "Brief in Support of Motion to Strike's [sic] Respondants [sic] Reply" (Docket Entry 22 ) as a Response to Petitioner's Motion for Summary Judgment (Docket Entry 18 ). (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEWIS JERMAINE CHAPMAN,
Plaintiff,
v.
JOEL HERRON,
Defendant.
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1:11CV194
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Petitioner’s Motion for
Appointment of Counsel (Docket Entry 2), Motion for an Order
(Injunctive) Compelling Respondant’s [sic] Reply (Docket Entry 15),
and Motion to Strike Respondants [sic] Reply Answer on Merits of
Petition for Writ of Habeas Corpus (Docket Entry 21).
For the
reasons that follow, the Court will deny the instant Motions.
BACKGROUND
This case began when Petitioner filed a pro se Petition
pursuant to 28 U.S.C. § 2254 (Docket Entry 1), along with his
instant Motion for Appointment of Counsel (Docket Entry 2).
The
Court subsequently ordered a response from Respondent contingent
upon Petitioner’s submission of the $5.00 filing fee. (Docket Entry
5.)
After the Court received said payment from Petitioner (see
Docket Entry dated Apr. 12, 2011), Respondent timely submitted an
Initial Answer (Docket Entry 8), Motion to Dismiss on Statute of
Limitations Grounds (Docket Entry 9), and Brief in Support (Docket
Entry 10).
The Clerk then promptly sent Petitioner a letter
advising him that Respondent had filed the foregoing Motion to
Dismiss and explaining that Petitioner “ha[d] the right to file a
20-page response in opposition . . . within 21 days from the date
of service of [said] motion upon [him].”
(Docket Entry 11 at 1
(emphasis added).)
Within that 21-day period, Petitioner filed documents he
entitled “Motoin [sic] Objecting to Respondants [sic] Motoin [sic]
Denying Petitioner’s Habeas Corpus” (Docket Entry 12) and “Brief in
Support of Motion Reply” (Docket Entry 13), which the Clerk docketed
as a Response to Respondent’s foregoing Motion to Dismiss and as a
Brief in support of such Response, respectively.
Two and a half
months later, Petitioner filed his instant Motion for an Order
(Injunctive) Compelling Respondant’s [sic] Reply (Docket Entry 15),
this time without a supporting brief.
Respondent responded in
opposition (Docket Entry 16) and then filed an Answer on the Merits
to Petition for Writ of Habeas Corpus (Docket Entry 17), Motion for
Summary Judgment (Docket Entry 18), and Brief (Docket Entry 19).
After the Clerk sent Petitioner another letter regarding his right
to respond to Respondent’s summary judgment motion (Docket Entry
20), Petitioner filed his instant Motion to Strike Respondants [sic]
Reply Answer on Merits of Petition for Writ of Habeas Corpus (Docket
Entry 21), along with a document entitled “Brief in Support of
Motion to Strike’s [sic] Respondants [sic] Reply” (Docket Entry 22).
-2-
DISCUSSION
First, as to Petitioner’s instant Motion for Appointment of
Counsel, the Court notes that “[p]risoners have no right to counsel
United States v. MacDonald, 966 F.2d
in a collateral proceeding.”
854, 859 n.9 (4th Cir. 1992). Instead, “[t]he determination whether
to appoint counsel [for a state prisoner in a habeas case] is left
to the discretion of the district court.”
Murvin v. Creecy, 812
F.2d
Cir.
1401
(table),
(unpublished).
1987
WL
36472
(4th
Feb.
25,
1987)
In exercising that discretion, the Court must
determine whether Petitioner has shown “that his case is one with
exceptional circumstances.”
(4th Cir. 1987).
Miller v. Simmons, 814 F.2d 962, 966
“The question of whether such circumstances exist
in any particular case hinges on characteristics of the claim and
the litigant.”
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir.
1984), abrogated in part on other grounds, Mallard v. United States
Dist. Ct. for S.D. of Iowa, 490 U.S. 296 (1989).
More pointedly,
“[i]f it is apparent to the district court that a pro se litigant
has a colorable claim but lacks the capacity to present it, the
district court should appoint counsel to assist him.”
Gordon v.
Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978).
In this case, it is apparent neither that Petitioner has a
colorable claim nor that he lacks the capacity to present any such
claim.
Moreover, the grounds cited by Petitioner in support of his
instant request (see Docket Entry 2 at 2) reflect circumstances
confronted
by
many
prisoner-litigants
-3-
and
thus
do
not,
by
definition, qualify as exceptional.
As a result, the Court will
exercise its discretion to deny appointment of counsel.
Nor do Petitioner’s other two instant Motions warrant any
action by the Court. As set out in the Background section, when the
Court directed Respondent to respond to the Petition, Respondent
filed an Initial Answer, a Motion to Dismiss, and a Brief, all of
which asserted that the statute of limitations barred Petitioner’s
claims. The applicable rules permit such action. See Rule 4, Rules
Governing Sect. 2254 Cases (“If the petition is not [summarily]
dismissed, the judge must order the respondent to file an answer,
motion, or other response . . . .”); Rule 4, Rules Governing Sect.
2254 Cases, Advisory Comm. Notes (2004 Amends.) (observing that said
rule “reflects that the response to a habeas petition may be a
motion”); Rule 5, Rules Governing Sect. 2254 Cases, Advisory Comm.
Notes (2004 Amends.) (noting that “Rule 4 permits th[e] practice”
of a “respondent fil[ing] a pre-answer motion to dismiss the
petition”); see also Rouse v. Lee, 339 F.3d 238, 253 n.17 (4th Cir.
2003) (en banc) (recognizing propriety of consideration by courts
of motion by respondent to dismiss habeas petition as untimely
before receiving respondent’s filing on merits of petitioner’s
claims).
This approach makes sense because “a dismissal may be
called for on procedural grounds, which may avoid burdening the
respondent with the necessity of filing an answer on the substantive
merits of the petition.”
Rule 4, Rules Governing Sect. 2254 Cases,
Advisory Comm. Notes (1976 Adoption).
-4-
The Court advised Petitioner of his right to file a “response
in opposition” to Respondent’s foregoing Motion to Dismiss. (Docket
Entry 11 at 1.)
Within the allotted time, Petitioner submitted
documents which he styled as “Motoin [sic] Objecting to Respondants
[sic] Motoin [sic] Denying Petitioner’s Habeas Corpus” (Docket Entry
12) and “Brief in Support of Motion Reply” (Docket Entry 13).
Because these filings did not assert any technical or procedural
objection to the Motion to Dismiss, but instead appeared to address
the substance of the arguments raised by Respondent, the Clerk
reasonably docketed them as a Response in opposition to Respondent’s
Motion to Dismiss and as a Brief in support of such Response.1
Under these circumstances, Respondent had no obligation to respond.
The instant Motion for an Order (Injunctive) Compelling Respondant’s
[sic] Reply, in which Petitioner asks the Court “to issue its order,
requiring that the respondant [sic] reply to, Petitioner’s previous
motion”
(Docket
$1,000.00/a
Entry
day,
15
everyday
at
1)
that
and
“to
lapses
pay
from
the
petitioner
respondant
[sic]
replying” (id. at 2), thus lacks merit.
In addition to mistakenly asserting that Respondent had an
obligation
to
Petitioner’s
respond
Motion
to
for
a
an
filing
Order
1
mislabeled
as
(Injunctive)
a
motion,
Compelling
Indeed, if the Clerk had not done so, Petitioner would have
been left without any response to Respondent’s Motion to Dismiss
and, as the Clerk’s letter had warned, the absence of such a
response could have caused the Court to treat said Motion to
Dismiss as uncontested and thus subject to granting as a matter of
course. See M.D.N.C. LR7.3(k).
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Respondant’s [sic] Reply also complained that Petitioner “suffer[ed]
potential prejudice” due to Respondent’s delay in addressing “the
accusations in the Habeas Corpus application” (id. at 3). “In light
of [such] complaints about Respondent’s initial answer being limited
to the statute of limitations defense . . ., [Respondent] prepared
and filed [an] answer on the merits, a motion for summary judgment
and supporting brief, and a copy of the trial transcript.”
Entry 17 at 1.)
(Docket
Remarkably, despite having claimed prejudice from
the absence of an answer on the merits, Petitioner reacted to
Respondent’s filing of such an answer by filing the instant Motion
to Strike Respondants (sic) Reply Answer on Merits of Petition for
Writ of Habeas Corpus (Docket Entry 21).
As grounds for such action, Petitioner asserted that Respondent
had not complied with this Court’s Local Rule 56.1(a) by failing to
file (in Petitioner’s words) “a dispotive [sic] notice to all
parties . . . within 10 days following close of discovery period[.]”
(Id. at 1.)2
Even setting aside the inconsistency of demanding and
decrying the same action, Petitioner’s argument in this regard has
no basis.
In habeas cases (unlike routine civil cases), discovery
does not occur as a matter of course.
2
See, e.g., Stephens v.
Petitioner’s “Brief in Support of Motion to Strike’s [sic]
Respondants [sic] Reply” does not provide contentions to support
the striking of Respondent’s Answer on the Merits and Motion for
Summary Judgment, but instead appears to present arguments designed
to rebut the position taken by Respondent in said filings about the
merits (or lack thereof) of the claims in the Petition.
(See
Docket Entry 22.)
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Branker, 570 F.3d 198, 213 (4th Cir. 2009).
Because the Court has
not authorized any discovery in this case, there was no discovery
period as to which Local Rule 56.1(a) would apply.3
Simply put,
Petitioner’s instant Motion to Strike Respondants (sic) Reply Answer
on Merits of Petition for Writ of Habeas Corpus provides no basis
for the relief it requests.
IT
IS
THEREFORE
ORDERED
that
Petitioner’s
Motion
for
Appointment of Counsel (Docket Entry 2), Motion for an Order
(Injunctive) Compelling Respondant’s (sic) Reply (Docket Entry 15),
and Motion to Strike Respondants (sic) Reply Answer on Merits of
Petition for Writ of Habeas Corpus (Docket Entry 21) are DENIED.
The Court will treat Petitioner’s “Brief in Support of Motion to
Strike’s [sic] Respondants [sic] Reply” (Docket Entry 22) as a
Response to Petitioner’s Motion for Summary Judgment (Docket Entry
18).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 2, 2012
3
The fact that this Court’s Local Rules regarding civil
procedure lack uniform applicability in the habeas context is
unremarkable, given that such rules merely represent an extension
of the Federal Rules of Civil Procedure, see Fed. R. Civ. P. 83(a),
which do not apply uniformly to habeas cases, see Rule 12, Rules
Governing Sect. 2254 Cases. In other words, “[t]he [C]ourt does
not have to rigidly apply rules [of civil procedure] which would be
inconsistent or inequitable in the overall framework of habeas
corpus.” Rule 12, Rules Governing Sect. 2254 Cases, Advisory Comm.
Notes (1976 Adoption).
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