Whitt v. Warden Lebanon Correctional Institution

Filing 8

ORDER denying 3 Motion for Leave to Proceed in forma pauperis; adopting Report and Recommendations re 4 Report and Recommendations. denying 6 Motion to Appoint Counsel; denying 7 Motion to Preserve Pauper Status. Signed by Judge Algenon L . Marbley on 4/17/2015. Respondent is ORDERED to answer the Petition in accordance with the provisions of Rule 5, Rules Governing Section 2254 Cases in the United States District Courts, within twenty-one (21) days. Petitioner may have twenty-one (21) days thereafter to file a reply to the Respondents answer or other response to the petition. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHEN H. WHITT,
CASE NO. 2:15-CV-00560
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KING

Petitioner,
v.
WARDEN, LEBANON CORRECTIONAL
INSTITUTION,
Respondent.

ORDER
On March 3, 2015, the Magistrate Judge issued a Report and Recommendation
recommending that Petitioner’s Motion for Leave to Proceed in Forma Pauperis, ECF 3, be
denied. Petitioner has filed an objection to the Report and Recommendation. He asks to preserve
his pauper status in the event that he files an appeal in this case. Motion to Preserve Pauper
Status, ECF 7. Petitioner also requests the appointment of counsel on his behalf. ECF 6.
Petitioner has paid the $5.00 filing fee, and it appears that he is able to bear that cost at
this time. If an evidentiary hearing is required to resolve this action, the Court will reconsider
Petitioner’s application for leave to proceed in forma pauperis. It also will do so in the event of
an appeal. Petitioner’s Motion to Preserve Pauper Status, ECF 7, is therefore DENIED.
Petitioner’s Motion to Appoint Counsel, ECF 6, also is DENIED.

Habeas corpus

proceedings are considered to be civil in nature, and the Sixth Amendment does not guarantee
the right to counsel in these proceedings. See Greene v. Knab, No. 2:09–cv–258, 2010 WL
3522479, at *3 (S.D.Ohio July 30, 2010) (citation omitted).

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The decision to appoint counsel for a federal habeas petitioner is
within the discretion of the court and is required only where the
interests of justice or due process so require. 18 U.S.C. §
3006A(g); .... Appointment of counsel in a habeas proceeding has
been found to be mandatory only if the district court determines
that an evidentiary hearing is required. Rule 8(c), Rules Governing
§ 2254 Cases. Where no evidentiary hearing is necessary, as in the
instant case, the district court will often consider (1) the legal
complexity of the case, (2) factual complexity of the case, and (3)
petitioner's ability to investigate and present his claims, along with
any other relevant factors.
Gammalo v. Eberlin, No. 1:05CV617, 2006 WL 1805898 (N.D. Ohio June 29, 2006) (citations
omitted). The record does not presently indicate that an evidentiary hearing will be required to
resolve the case, or that the interests of justice or due process require the appointment of counsel
on petitioner's behalf.
The Report and Recommendation, ECF 4, is ADOPTED and AFFIRMED. Petitioner’s
Motion for Leave to Proceed in Forma Pauperis, ECF 3, is DENIED. Petitioner’s Motion to
Preserve Pauper Status, ECF 7, is DENIED. Petitioner’s Motion to Appoint Counsel, ECF 6, is
DENIED, without prejudice to renewal.
Respondent is ORDERED to answer the Petition in accordance with the provisions of
Rule 5, Rules Governing Section 2254 Cases in the United States District Courts, within twentyone (21) days.
Petitioner may have twenty-one (21) days thereafter to file a reply to the Respondent’s
answer or other response to the petition.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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