Wilson v. Roy
Filing
29
ORDER granting 27 Motion for Extension of Time; Motion-related deadline set re: 24 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus ; denying 28 Motion to Appoint ( Responses due by 12/19/2013.).(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FRED WILSON,
Petitioner,
VS.
KEITH ROY,
Respondent.
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§ CIVIL ACTION NO. 2:13-CV-73
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ORDER
Petitioner is a federal inmate currently confined at FCI Allenwood in White Deer,
PA.1 Proceeding pro se, he filed a habeas petition pursuant to 28 U.S.C. §§ 2241
challenging the calculation of his sentence. (D.E. 1). Respondent filed a Motion to
Dismiss on October 18, 2013, which the Court then construed as a Motion for Summary
Judgment. (D.E. 24 and D.E. 26). Therefore, the Court gave both parties until November
19, 2013, to present additional evidence. (D.E. 26). Petitioner has now requested an
extension until December 19, 2013, because he was recently transferred to a new
correctional institution, is participating in a new residential drug treatment program and
has a correctional institution job. (D.E. 27). Petitioner has also filed a Motion for
Appointment of Counsel. (D.E. 28). For the reasons stated below, Petitioner’s Motion
for Extension of Time is GRANTED and Petitioner’s Motion for Appointment of
Counsel is DENIED.
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At the time of filing, Petitioner was incarcerated at FCI Three Rivers, Three Rivers, Texas. (DE 1).
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There is no constitutional right to counsel in federal habeas proceedings. Elizalde
v. Dretke, 362 F.3d 323, 329 (5th Cir. 2004); Johnson v. Hargett, 978 F.2d 855, 859 (5th
Cir. 1992). Rule 8(c) of the Rules Governing § 2254 Cases requires that counsel be
appointed if the habeas petition raises issues which 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.
Counsel will be assigned sua sponte if there are issues which 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).
It is therefore ORDERED that Petitioner’s Motion for the Appointment of
Counsel, (D.E. 28), is DENIED without prejudice. Petitioner’s Motion for Extension of
Time is GRANTED. (D.E. 27). Petitioner has until December 19, 2013, to file a
response to the pending Motion for Summary Judgment as well as any additional
evidence in support.
ORDERED this 21st day of November, 2013.
___________________________________
Jason B. Libby
United States Magistrate Judge
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