Gray v. Thaler

Filing 8

OPINION DENYING MOTION FOR APPOINTMENT OF COUNSEL denying without prejudice 2 Motion to Appoint.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(bcortez, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

ROBERT ASHLEY GRAY
v.
RICK THALER

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C.A. NO. C-11-219

OPINION DENYING MOTION FOR APPOINTMENT OF COUNSEL
Petitioner is a state inmate currently incarcerated at the Michael Unit in Tennessee
Colony, Texas who has filed a habeas petition pursuant to 28 U.S.C. § 2254 challenging his
conviction. (D.E. 1). Pending is petitioner’s motion for appointment of counsel. (D.E. 2).
There is no constitutional right to counsel in federal habeas proceedings. Wright v. West,
505 U.S. 277, 293 (1992) (Constitution “guarantees no right to counsel on habeas”); see also
Elizalde v. Dretke, 362 F.3d 323, 329 (5th Cir. 2004) (same); Johnson v. Hargett, 978 F.2d 855,
859 (5th Cir. 1992) (same). Rule 8(c) of the Rules Governing § 2254 Cases requires that counsel
be appointed if the habeas petition raises issues that mandate an evidentiary hearing. Here, his
request for counsel is premature because at this stage in his case there are no factual issues
requiring an evidentiary hearing. Indeed, respondent has not yet been served let alone filed an
answer.
Counsel will be assigned sua sponte if there are issues that mandate an evidentiary
hearing be held. Moreover, the Court may appoint counsel if discovery is ordered and there are
issues necessitating the assignment of counsel. See Rule 6(a) of the Rules Governing § 2254
Cases; Thomas v. Scott, 47 F.3d 713, 715 n.1 (5th Cir. 1995).
Accordingly, petitioner’s motion for the appointment of counsel, (D.E. 2), is DENIED

without prejudice.
ORDERED this 12th day of July 2011.

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BRIAN L. OWSLEY
UNITED STATES MAGISTRATE JUDGE

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