Jeffries v. USA

Filing 12

ORDER granting 3 Motion to exceed page limit; denying 6 Motion for Discovery; denying as moot 7 Motion for Leave to Proceed in forma pauperis; denying 8 Motion to Appoint Counsel ; denying as moot 11 Motion for Leave to File Pursuant to Rules Governing Section 2255, Rule 5(d). Signed by District Judge Martin Reidinger on October 22, 2010. (Pro se litigant served by US Mail.)(jhg)

Jeffries v. USA

Doc. 12

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO. 1:10cv205 [C rim in a l Case No. 1:07cr56]

R E G IN AL D DEWAYNE JEFFRIES,

) ) P e t it io n e r , ) ) v. ) ) U N IT E D STATES OF AMERICA, ) ) R e s p o n d e n t. ) ________________________________)

ORDER

TH IS MATTER comes before the Court on the following: 1. T h e Petitioner's Motion for Permission to Exceed the Page Limit [Doc. 3 ]; 2. 3. T h e Petitioner's Motion for Leave to Conduct Discovery [Doc. 6]; T h e Petitioner's Application to Proceed without Prepayment of Fees a n d Affidavit [Doc. 7]; 4. 5. T h e Petitioner's Motion for Appointment of Counsel [Doc. 8]; and T h e Petitioner's Motion pursuant to Rules Governing Section 2255, Rule 5 (d ) [Doc. 11]. 1

Dockets.Justia.com

T h e Petitioner's memorandum of law in support of his motion is fortyth re e pages in length. He also has attached one hundred and fifteen pages o f exhibits to the motion. Although the Court will allow the motion to exceed th e page limit, the Petitioner is cautioned against exceeding the limit in the fu tu r e . T h e Petitioner moves for leave to conduct discovery from the United S ta te s and his trial attorney. [Doc. 6.] "A habeas petitioner, unlike the usual c iv il litigant in federal court, is not entitled to discovery as a matter of ordinary c o u rs e ." Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 9 7 (1997). Thus, discovery is granted only for "good cause." Rule 6(a), Rules G o ve rn in g § 2255 Proceedings for the United States District Courts. A

p e titio n e r must make specific allegations establishing reason to believe that, if the facts are fully developed, he is entitled to relief. The burden is on the p e titio n e r to demonstrate the materiality of the information sought. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001), certiorari denied 537 U.S. 831, 1 2 3 S.Ct. 136, 154 L.Ed.2d 47 (2002). However, "Rule 6 does not `sanction fis h in g expeditions based on a petitioner's conclusory allegations.'" Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004), certiorari denied 544 U.S. 1003,

2

1 2 5 S.Ct. 1939, 161 L.Ed.2d 779 (2005) (citations omitted). Having reviewed the Petitioner's discovery requests and the record of th e criminal case, the Court concludes that, at this time, the Petitioner has not c a rr ie d his burden and discovery is not warranted. As a result, the Petitioner's re q u e s t for subpoenas [Doc. 10] will not be acted upon by the Clerk of Court. T h e Petitioner has moved for leave to proceed without the prepayment o f fees. There is no filing fee in connection with a motion pursuant to 28 U .S .C . §2255 and no discovery is warranted at this point. The Petitioner's m o tio n is therefore denied. T h e Petitioner also requests that counsel be appointed to assist him with th is case. [Doc. 8.] "Though there is no constitutional right to counsel in § 2 2 5 5 proceedings, `there is a statutory right to appointed counsel in a section 2 2 5 5 proceeding under Rule 8 ... if an evidentiary hearing is required.'" United S ta te s v. Phillips, 134 F.3d 365 **1 (4 th Cir. 1998), certiorari denied 523 U.S. 1 0 6 6 , 118 S.Ct. 1400, 140 L.Ed.2d 658 (1998), quoting United States v. V a s q u e z , 7 F.3d 81, 83 (5 th Cir. 1993); Rule 8, Rules Governing § 2255 P ro c e e d in g s for the United States District Courts. Because at this time a

h e a rin g is unnecessary, the request for counsel is denied. F in a lly, the Petitioner requests that he be given forty days to respond to

3

a n y response filed by Respondent.

[Doc. 11.]

Upon receiving the

R e s p o n d e n t's response to the Petitioner's motion, this Court will provide P e titio n e r an opportunity to respond. A motion seeking this opportunity is u n n e c e s s a ry and is denied as moot. IT IS, THEREFORE, ORDERED as follows: 1. T h e Petitioner's Motion for Permission to Exceed the Page Limit [Doc. 3 ] is GRANTED; 2. T h e Petitioner's Motion for Leave to Conduct Discovery [Doc. 6] is D E N IE D ; 3. T h e Petitioner's Application to Proceed without Prepayment of Fees and A ffid a vit [Doc. 7] is DENIED as moot; 4. T h e Petitioner's Motion for Appointment of Counsel [Doc. 8] is DENIED; and 5. T h e Petitioner's Motion Pursuant to Rules Governing Section 2255, R u le 5(d) [Doc. 11] is DENIED as moot.

Signed: October 22, 2010

4