Turner v. Johnson

Filing 21

ORDER; The Court does not find this to be the exceptional case where a petitioner has a limited ability to present his claims to the court. For these reasons, Petitioner's motion for appointment of counsel 14 is DENIED at this time, though this subject will be revisited in the event an evidentiary hearing is scheduled in this case. Signed by District Judge Pamela L Reeves on 11/5/15. (c/m) (ADA) Modified on 11/5/2015 to flatten pdf (ADA).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

TRAY D. TURNER,
Petitioner,
v.
DEBRA JOHNSON, Warden,
Respondent.

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No.: 3:15-CV-114-PLR-HBG

ORDER

This state prisoner’s pro se petition for a writ of habeas corpus, 28 U.S.C. § 2254, is
before the Court upon his motion to appoint counsel [Doc. 14]. In his motion, Petitioner alleges
that appointed counsel is necessary to establish cause and prejudice, since he is a layman who
does not possess the specialized skills to proceed competently in this action [Id.].
To start, there is no constitutional right to counsel in habeas corpus proceedings. See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a
constitutional right to counsel when mounting collateral attacks upon their convictions, and we
decline to so hold today.”) (internal citation omitted); Cobas v. Burgess, 306 F.3d 441, 444 (6th
Cir. 2002) (noting that “a petitioner does not have a right to assistance of counsel on a habeas
appeal”). Instead, a court has discretion to appoint an attorney for indigent litigants, although the
exercise of that discretion is justified only in exceptional cases, such as those which contain
complex legal and factual issues and where a petitioner has a limited ability to present his claims
to the court. See Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996) (“We take judicial notice

of the fact that courts within this circuit, absent extraordinary circumstances, do not appoint
lawyers.”); Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993).
In the answer to the § 2254 petition, the Warden asserts that some of Petitioner’s grounds
for relief are procedurally barred [Doc. 8 p.2], but, in Petitioner’s reply to the Warden’s answer
[Doc. 15], Petitioner relies on “Martinez and its progeny” to support his claim of cause, i.e., that
ineffective assistance of his post-conviction counsel serves as cause to excuse his procedural
default [Id. p.6]. Obviously, it is not necessary to appoint counsel to assist Petitioner in his effort
to overcome the claimed procedural default, given that he has already asserted cause in his pro se
reply.
The Court does not find this to be the exceptional case where a petitioner has a limited
ability to present his claims to the court. For these reasons, Petitioner’s motion for appointment
of counsel [Doc. 14] is DENIED at this time, though this subject will be revisited in the event an
evidentiary hearing is scheduled in this case. See Rule 8(c), Rules Governing Section 2254
Cases In The United States District Courts.
SO ORDERED.

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