Jones v. Keller

Filing 7

ORDER denying 2 & 4 Motions to Appoint Counsel; granting 3 Motion for Leave to Proceed in forma pauperis; denying 5 Motion for TRO and/or Preliminary Injunction. Signed by Chief Judge Robert J. Conrad, Jr on 2/20/13. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12-cv-304-RJC
RODNEY MOUCELL JONES,
Petitioner,
v.
ALVIN W. KELLER, JR.
Respondent.

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ORDER

THIS MATTER is before the Court on an initial review of Petitioner’s petition for a writ
of habeas corpus, filed pursuant to 28 U.S.C. § 2254; Petitioner’s motions to appoint counsel;
Petitioner’s motion to proceed in forma pauperis; and Petitioner’s motion for a temporary
restraining order and/or preliminary injunction.1
I.

INITIAL REVIEW
Rule 4 of the Rules Governing Section 2254 Proceedings requires the court to conduct an

initial review of a Section 2254 petition, and any attached exhibits and determine whether the
petitioner is entitled to any relief, and the court may order the respondent to file an answer or
response to the petition. After examining the petition, and relevant materials, the Court finds that
the Respondent should file an answer or response to the Section 2254 petition.
II.

APPOINTMENT OF COUNSEL
According to the website of the North Carolina Department of Public Safety, Petitioner is

confined in the Scotland Correctional Institution following conviction for Kidnapping in the First
Degree (Principal); Petitioner is scheduled for release from custody on November 29, 2043.

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The Court has examined Petitioner’s motion to proceed in forma pauperis and finds that good cause exists to grant
the motion. (Doc. No. 3).

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Petitioner contends that he is being wrongfully detained based on numerous errors in his
State proceedings, including ineffective assistance of counsel and the trial court’s lack of subject
matter jurisdiction over him. In his motions for appointment of counsel, Petitioner asserts that he
needs the assistance of counsel for, among other reasons, he has no access to legal materials and
he needs assistance with discovery.
There is no constitutional right to counsel in Section 2254 proceedings. See Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987). Under 18 U.S.C. § 3006A(a)(2)(B), a court may appoint
counsel in a habeas proceeding if it finds that “that the interests of justice so require.” See also
Rule 6(a) of the Rules Governing Section 2254 Proceedings (providing that the court may
authorize discovery for good cause and appoint an attorney to assist in discovery).
The Court has examined Petitioner’s Section 2254 petition, and finds that Petitioner has
adequately presented his allegations to the Court and that there is no indication at present that the
Court would authorize discovery in this matter. The motions for appointment of counsel are
therefore denied in the Court’s discretion.
III.

MOTION FOR INJUNCTIVE RELIEF
The Court has considered Petitioner’s motion for a temporary restraining order and/or

preliminary injunction and finds that it should be denied as the Respondent is entitled to answer
or respond to the contentions set forth in Petitioner’s Section 2254 petition before the Court
makes any substantive findings on the nature of the State proceedings.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motions for Appointment of Counsel are DENIED. (Doc. Nos. 2, 4).

2.

Petitioner’s Motion to Proceed in forma pauperis is GRANTED. (Doc. No. 3).

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3.

Petitioner’s Motion for Temporary Restraining Order and/or Preliminary

Injunctions is DENIED. (Doc. No. 5).
Signed: February 20, 2013

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