Loftis v.Chrisman

Filing 52

OPINION AND ORDER by Judge Ronald A. White : Denying 51 Motion for Appointment of Counsel. Directing Respondent to show cause why the writ should not issue and file a response to the petition( Responses due by 9/5/2018, Replies due by 10/5/2018.) (Re: 51 MOTION for Appointment of Counsel ) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EMBRY JAY LOFTIS,
Petitioner,
v.
TRACY McCOLLUM, Warden,
Respondent.

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No. CIV 14-019-RAW-KEW

OPINION AND ORDER
Petitioner has filed a motion requesting the Court to appoint counsel (Dkt. 51). He
bears the burden of convincing the Court that his claim has sufficient merit to warrant such
appointment. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (citing United
States v. Masters, 484 F.2d 1251, 1253 (10th Cir. 1973)). The Court has carefully reviewed
the merits of Petitioner’s claims, the nature of factual issues raised in his allegations, and his
ability to investigate crucial facts. McCarthy, 753 F.2d at 838 (citing Maclin v. Freake, 650
F.2d 885, 887-88 (7th Cir. 1981)). After considering Petitioner’s ability to present his claims
and the complexity of the legal issues raised by the claims, the Court finds that appointment
of counsel is not warranted. See Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991); see
also Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Therefore, Petitioner’s
request for appointment of counsel is denied.
In addition, Petitioner attached to his motion the Order Granting Post-Conviction
Appeal Out of Time, and Affirming Denial of Application for Post-Conviction Relief. Loftis
v. State, No. PC-2018-152 (Okla. Crim. App. July 20, 2018) (Dkt. 51 at 7-13). The Court

construes this attachment as a response to the Court’s Opinion and Order entered on August
21, 2017 (Dkt. 49), demonstrating exhaustion of his state court remedies.
Respondent is directed to show cause within thirty (30) days why the writ should not
issue by filing an answer to the petition, in accordance with Rule 5 of the Rules Governing
Section 2254 Cases. As an alternative to filing a Rule 5 answer, Respondent may file
within thirty (30) days a motion to dismiss based upon 28 U.S.C. § 2244, 28 U.S.C. § 2254,
or other applicable statute. Extensions of time will be granted for good cause only, and in
no event for longer than an additional twenty (20) days. Petitioner may submit a reply to
Respondent’s answer or motion within fifteen (15) days after the filing of Respondent’s
pleading.
ACCORDINGLY, Petitioner’s motion for appointment of counsel (Dkt. 51) is
denied, and Respondent is directed to file an answer to the petition in accordance with the
instructions set forth in this Opinion and Order.
IT IS SO ORDERED this 6th day of August 2018.

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