Lisenby v. Reynolds

Filing 36

ORDER denying 14 Motion for Copies; denying 22 Motion to Appoint Counsel; denying 23 Motion for Funds to Hire an Expert; denying 24 Motion for Issuance of Subpoena. Signed by Magistrate Judge Kaymani D West on 1/23/2013.(mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Billy Lee Lisenby, Jr.,
Petitioner,
v.
Cecilia Reynolds, Warden KCI,
Respondent.

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C/A No.

5:12-cv-02666-DCN-KDW

Order

 Petitioner brought this habeas action pursuant to 28 U.S.C. § 2254. This matter is

before the court on Petitioner’s Motion for Copies, ECF No. 14, Motion to Appoint Counsel,
ECF No. 22, Motion for Funds to Hire an Expert, ECF No. 23, and Motion for Issuance of
Subpoena, ECF No. 24. Respondent has not filed responses to these motions. Under Local
Civil Rule 73.02(B)(2) of the United States District Court for the District of South Carolina,
pretrial proceedings in this action have been referred to the assigned United States Magistrate
Judge.
Motion for Copies (ECF No. 14)
Petitioner filed a Motion for Copies on November 7, 2012 contending that the
mailroom confiscated his copies of his habeas petition and requests that the court provide
him with “a copy of his original complaint, to see what is missing out of his habeas petition.”
ECF No. 14. Petitioner contends that he does not have the funds to pay $56.50 to obtain a
copy of his complaint. Id.
The court does not provide copies to litigants free of charge. The Clerk’s Office
charges 50 cents per page for copies. If Petitioner wishes to purchase a copy of documents

filed in this court, he may contact the Clerk of Court at 843-676-3820 or 401 West Evans
Street, Florence, SC 29501 to make payment arrangements. Petitioner’s request for copies,
ECF No. 14, is hereby denied.
Motion to Appoint Counsel (ECF No. 22):
Petitioner filed a request for appointment of counsel on December 10, 2012
contending that he is in solitary confinement and does not have access to legal supplies, that
he suffers from diabetes, and is challenging an insanity defense. ECF No. 22. Petitioner asks
that the court appoint counsel because “this is his last chance to challenge his case. This case
will likely need expert witnesses, medical records subpoenaed and an attorney who knows
about medical cases.” Id.
There is no Sixth Amendment right to counsel to pursue a petition for habeas corpus.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[S]ince a defendant has no federal
constitutional right to counsel when pursuing a discretionary appeal on direct review of his
conviction, ... he has no such right when attacking a conviction that has long since become
final upon exhaustion of the appellate process.”). While a court may provide counsel for an
indigent inmate pursuing a petition for habeas corpus when “the court determines that the
interests of justice so require,” 18 U.S.C. § 3006A(2)(B); the Fourth Circuit has limited the
appointment of counsel to cases where “exceptional circumstances” exist, such as when a
case is particularly complex or a litigant is unable to represent himself adequately. Whisenant
v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).
After a review of the pleadings and other documents in this case, the court finds that,
at this time, factors are not present that reflect a need for Petitioner to have counsel
appointed. The case itself does not appear atypically complex, and Petitioner has shown that

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he is able to represent his interests to this point. Accordingly, Petitioner’s request for
appointment of counsel, ECF No. 22, is denied.
Motion for Funds To Hire Expert (ECF No. 23)
Petitioner filed a motion on December 10, 2012 requesting that the court provide him
with funds to hire an expert. ECF No. 23. Peitioner contends that he is “challenging a case
that involves insanity defense” and that “he will need funds to hire an expert to explain the
effect of Xanax and provigual (sic) when combined.” Id.
First, the court finds no authority to appoint and pay an expert to assist an indigent
litigant in the preparation of a habeas petition. Further, the undersigned acknowledges that
pursuant to Fed. R. Evid. 706, a court may, on its own motion or on a motion by any party,
appoint an expert witness. However, the determination to appoint an expert rests solely in
the court’s discretion and is to be determined by such factors as the complexity of the matters
to be determined and the court’s need for a neutral, expert view. See Pabon v. Goord, No. 99
Civ. 5869, 2001 WL 856601 (S.D.N.Y. July 30, 2001)). The appointment of an expert
pursuant to Rule 706 is not intended to further partisan interests of any party, but to aid the
court, through the services of an impartial expert in its assessment of technical issues.
In this case, the issues do not appear to the undersigned to be of the requisite
complexity to require appointment of an expert witness. As the underlying purpose of Rule
706 is to assist the court in evaluating contradictory or complex evidence, rather than to aid
the Petitioner’s prosecution of his own case, Petitioner’s Motion for Funds to Hire an Expert,
ECF No. 23, is denied.

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Motion for Subpoenas (ECF No. 24):

On December 10, 2012, Petitioner filed a Motion for Subpoenas, seeking to subpoena

a copy of his medical files from Dr. Rommel, and Neurology, Neurodiagnostic and Pain
Clinic. ECF No. 24.
Rule 6 of the Rules Governing Section 2254 Cases states, in part, that:
(a) Leave of Court Required. A judge may, for good cause, authorize a party
to conduct discovery under the Federal Rules of Civil Procedure and may
limit the extent of discovery.
(b) Requesting Discovery. A party requesting discovery must provide reasons
for the request. The request must also include any proposed interrogatories
and requests for admission, and must specify any requested documents.
Petitioner has not sought leave of this court to file any discovery requests nor has the court
authorized Petitioner to conduct discovery.

Accordingly, Petitioner is not entitled to

discovery and, thus, his Motion for Subpoenas, ECF No. 24, is denied.
Conclusion
Therefore, for the foregoing reasons, it is ORDERED that Petitioner’s Motion for
Copies, ECF No. 14, Motion to Appoint Counsel, ECF No. 22, Motion for Funds to Hire an
Expert, ECF No. 23, and Motion for Issuance of Subpoena, ECF No. 24, are DENIED.
IT IS SO ORDERED.

January 23, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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