Kirk v. Bivens

Filing 9

ORDER DIRECTING CLERK TO MODIFY DOCKET, DENYING 6 MOTION FOR APPOINTMENT OF COUNSEL, DENYING 8 MOTION FOR INSTANTER RULING, AND DIRECTING RESPONDENT TO RESPOND. Signed by Chief Judge J. Daniel Breen on 10/19/16. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

MILTON L. KIRK, JR.,
Petitioner,
v.

Case No. 1:15-cv-01101-JDB-egb

BLAIR LEIBACH,
Respondent.

ORDER DIRECTING CLERK TO MODIFY DOCKET,
DENYING MOTION FOR APPOINTMENT OF COUNSEL,
DENYING MOTION FOR INSTANTER RULING, AND
DIRECTING RESPONDENT TO RESPOND

On April 30, 2015, Petitioner, Milton L. Kirk, Jr., a prisoner incarcerated at the Trousdale
Turner Correctional Center (“TTCC”) in Hartsville, Tennessee, filed a pro se habeas corpus
petition under 28 U.S.C. § 2254 (“Petition”), accompanied by a motion seeking leave to proceed in
forma pauperis.1 (Pet., ECF No. 1; IFP, ECF No. 2.) The Court granted Petitioner’s in forma
pauperis motion on May 4, 2015. (Order, ECF No. 4.) Now before the Court are Petitioner’s
motions for appointment of counsel (ECF No. 6) and “Instanter Ruling on Federal Habeas Corpus
Petition” (ECF No. 8), and the Petition for initial review.2

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Petitioner’s Tennessee Department of Correction prisoner number is 283485.

The current warden at TTCC is Blair Leibach. The Clerk is therefore directed to modify
the docket to record Blair Leibach as Respondent and terminate C. Phillip Bivens as a party to this
action. See Fed. R. Civ. P. 25(d).

I.

Appointment of Counsel and Instanter Ruling
Petitioner moves for the appointment of counsel on the grounds that he is a “layman

without funds or proper knowledge of law and legal procedure and form” and that the “facts and
details and procedures are much too complicated ” for him. (Mot. Counsel, ECF No. 6.)
A petitioner in a federal habeas corpus proceeding has no Sixth Amendment right to
counsel. Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Nevertheless, under applicable
rule, appointment of counsel for an indigent petitioner is mandatory “[i]f an evidentiary hearing is
warranted.” Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District
Courts. Appointment of counsel is also “required . . . where the interests of justice or due process
so require.” Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986) (citing 18 U.S.C. § 3006A(g));
see also 18 U.S.C. § 3006A(a)(2)(B) (where the court determines “that the interests of justice so
require, representation may be provided for any financially eligible person who-. . . (B) is seeking
relief under section . . . 2254 . . . of title 28”). The determination of whether the interests of justice
or due process require the appointment of counsel is left to the sound discretion of the court.
Mira, 806 F.2d at 638. Factors to be considered by the court include the legal and factual
complexity of the case and the petitioner’s “‘ability to investigate and present his claims.’”
Thomas v. Morgan, No. 2:04-cv-02231-JDB-dbv, 2016 WL 1030153, at *6 (W.D. Tenn. Mar. 10,
2016) (quoting Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994)).
Here, appointment of counsel does not appear to be warranted, at least at this early stage of
the litigation. Respondent has not yet filed its response to the Petition, and nothing on the face of
the Petition suggests that an evidentiary hearing will be needed. Moreover, the fact that Petitioner
is a “layman” without legal training does not, alone, establish that the interests of justice or due

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process require appointment of counsel. See Richmond v. Settles, 450 F. App’x 448, 450, 452-53
(6th Cir. 2011) (plaintiff’s lack of legal training did not warrant appointment of counsel); Debow v.
Bell, No. 3:10-CV-01003, 2010 WL 5211611, at *1 (M.D. Tenn. Dec. 15, 2010) (petitioner’s lack
of legal knowledge was “typical to most prisoners” and therefore did not warrant appointment of
counsel). The legal issues do not appear to be too complex for Petitioner, whose submissions to
date have been articulate and cogent. Petitioner’s motion for appointment of counsel (ECF No. 6)
is therefore DENIED.
Petitioner’s motion for an instanter ruling on his Petition (ECF No. 8) is also DENIED.
The request is premature, as the Court must first order Respondent to file the state-court record and
respond to the Petition.
II.

Initial Review
The Court has reviewed the Petition and exhibits attached to the Petition. It is hereby

ORDERED that Respondent file a response to the Petition within twenty-eight days. See Rule 4,
Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”). The
response shall include the complete trial and appellate record of Petitioner’s original case and any
subsequent state petitions for collateral relief. The record shall be organized and appropriately
indexed.3 Distinct parts of the record shall be electronically bookmarked for ease of reference in
identifying documents relevant to the state court proceedings.

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Using the event “Index of State Court Record,” Respondent shall file a comprehensive
index. The index shall include the electronic bookmark references which indicate the location of
distinct parts of the record (e.g., plea proceedings, pretrial hearing transcripts, voir dire, each
portion of trial testimony, trial exhibits, jury instructions, verdict, each party’s briefs at each level
of appeal, each court’s final ruling on appeal and collateral proceedings, etc.). The actual record
shall be filed as an exhibit(s) to the index.
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It is further ORDERED that the Clerk send a copy of the Petition and this order to
Respondent and to the Tennessee Attorney General and Reporter by certified mail. See Habeas
Rule 4.

Pursuant to Habeas Rule 5(e), Petitioner may, if he chooses, submit a reply to

Respondent’s answer or response within twenty-eight days of service. Petitioner may request an
extension of time to reply by filing a motion on or before the due date of his reply. The Court will
address the merits of the Petition, or of any motion filed by Respondent, after the expiration of
Petitioner’s time to reply, as extended.
IT IS SO ORDERED, this 19th day of October 2016.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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