UNITED STATES OF AMERICA v. Powell

Filing 45

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE - Having received the report of the United States Magistrate Judge, having considered each of Defendant's timely filed objections (Dkt. #42), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #37) as the findings and conclusions of the Court. It is, therefore, ORDERED that Defendant's Motion to Appoint Counsel (Dkt. 35 ) is DENIED. Signed by Judge Amos L. Mazzant, III on 4/4/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

UNITED STATES OF AMERICA,

v.
ANGELA G POWELL,

§
§
§ Civil Action No. 4:16-CV-137
§ (Judge Mazzant/Judge Johnson)
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§
§

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On March 2, 2017, the report of the Magistrate Judge (Dkt. #37) was entered containing proposed
findings of fact and recommendations that pro se Defendant’s Motion to Appoint Counsel (Dkt.
#35) be denied. Having received the report of the Magistrate Judge (Dkt. # 37), having considered
each of Defendant’s timely filed objections (Dkt. #42), and having conducted a de novo review,
the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct,
and the Court hereby adopts the Magistrate Judge’s report (Dkt. # 37) as the findings and
conclusions of the Court.
BACKGROUND
On February 13, 2017, the Court entered a Memorandum Adopting Report and
Recommendation of United States Magistrate Judge (Dkt. #30). On February 15, 2017, the Court
amended the Memorandum Adopting finding that Plaintiff’s Motion for Summary Judgment is
granted (Dkt. #32). On that same day, the Court filed an Amended Final Judgment awarding
Plaintiff judgment (Dkt. #33). Defendant filed a motion for the Court to appoint counsel on
February 27, 2017 (Dkt. #35).

ANALYSIS
The Magistrate Judge recommended Defendant’s motion be denied because Defendant
filed her motion after the Court entered a final judgment and because Defendant failed to give
authority for any basis as to why the Court should appoint her counsel (Dkt. #37 at 1). Instead,
Defendant merely states that counsel is “necessary to ensure a defendant’s fundamental rights are
not unfairly compromised or that [the defendant is] denied due processes.” Id.
Defendant objects that she sent her motion before any ruling or amended report was made
and filed (Dkt. #42 at 2). Even if the Court would have received the motion before the Court
entered final judgment, however, Defendant has no right to the automatic appointment of counsel.
See Hall v. Menzina, 24 F.3d 239, 239 (5th Cir. 1994) (citing Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982)).

The appointment of counsel is unnecessary unless a case presents

“exceptional circumstances.” See Menzina, 24 F.3d at 239 (citing Ulmer, 691 F.2d at 212-13).
Defendant has not made the required showing that appointment of counsel is necessary because:
(1) the issues of her case are complex; and (2) she is unable to represent herself adequately. See
Menzina, 24 F.3d at 239 (citing Hulsey v. Texas, 929 F.2d 168, 172 (5th Cir. 1991)). Although the
Court is sympathetic for Defendant’s health issues, which Defendant describes as major depressive
disorder and anxiety (Dkt. #42), this is not an adequate basis for the Court to appoint counsel at
this stage in the case.
CONCLUSION
Having received the report of the United States Magistrate Judge, having considered each
of Defendant’s timely filed objections (Dkt. #42), and having conducted a de novo review, the
Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and
adopts the Magistrate Judge’s report (Dkt. #37) as the findings and conclusions of the Court.

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.
It is, therefore, ORDERED that Defendant’s Motion to Appoint Counsel (Dkt. #35) is
DENIED.
IT IS SO ORDERED.

SIGNED this 4th day of April, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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