Carrizales v. Director of Texas Dept. of Corrections-CID

Filing 23

OPINION AND ORDER denying without prejudice 20 Motion for Hearing; denying 21 Motion for Discovery; denying 22 Motion to Appoint.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GILBERT CARRIZALES,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:13-CV-82
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OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTION FOR
EVIDENTIARY HEARING, FOR LEAVE TO CONDUCT DISCOVERY, AND
FOR APPOINTMENT OF COUNSEL
Petitioner, an inmate at TDCJ’s Eastham Unit, filed this § 2254 Petition on March
25, 2013, challenging his Nueces County conviction for aggravated sexual assault of a
child (D.E. 1, 12, 14). Respondent has filed a motion for summary judgment that the
petition is unexhausted and barred by limitations (D.E. 14). The merits of the petition
were not briefed. Pending are Petitioner’s motions for an evidentiary hearing (D.E. 20),
for leave to conduct discovery (D.E. 21), and for appointment of counsel (D.E. 22).
Rule 6, Rules Governing Section 2254 Cases, requires leave of court to conduct
discovery. The motion must be supported by reasons. Id. Petitioner is requesting
discovery that relates to addressing the merits of his petition. He wants discovery from
the medical examiner involved in the investigation and trial of his case. At this time the
discovery Petitioner seeks is unnecessary. The court must first evaluate the issues raised
in the motion for summary judgment, that is, whether the petition is barred by limitations
or because of failure to exhaust. The motion is denied without prejudice. Petitioner may

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re-urge his motion if his petition is not dismissed for failure to exhaust or as barred by
limitations.
Petitioner has also requested appointment of counsel. There is no constitutional
right to counsel in federal habeas proceedings. Johnson v. Hargett, 978 F.2d 855 (5th
Cir. 1992). Rule 8 of the Rules Governing § 2254 Cases requires that counsel be
appointed if the habeas petition raises issues which mandate an evidentiary hearing. The
issues raised in the motion for summary judgment relate to limitations and exhaustion.
No evidentiary hearing is required at this time. At this stage of the proceedings, an
evidentiary hearing is unnecessary, and appointment of counsel at this time is not
warranted.
Counsel will be assigned sua sponte if there are issues which mandate an
evidentiary hearing. Moreover, counsel may be assigned if discovery is ordered and
issues necessitating the assignment of counsel are evident. 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 motions for leave to conduct discovery, for appointment
of counsel, and for an evidentiary hearing (D.E. 20, 21, 22) are denied without prejudice.
ORDERED this 21st day of October, 2013.

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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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