Guzman v. Davis

Filing 18

OPINION AND ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL denying 17 Motion to Appoint.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RUDY GUZMAN,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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December 11, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:17-CV-158

OPINION AND ORDER DENYING
MOTION FOR APPOINTMENT OF COUNSEL
Petitioner, an inmate incarcerated at the Chase Field Trusty Camp of the Texas
Department of Criminal Justice – Correctional Institutions Division (TDCJ-CID) filed
this petition pursuant to 28 U.S.C. § 2254 petition challenging the calculation of his
credit for time served (D.E. 1).

On October 5, 2017, a Memorandum and

Recommendation to the District Court was entered, recommending that Petitioner's
petition be dismissed as time barred (D.E. 15). Pending is his motion for appointment of
counsel (D.E. 17).
Although Petitioner has demonstrated that he is indigent and has been allowed to
proceed in forma pauperis, 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. A recommendation is before the District
Court to dismiss the petition as time-barred because it was filed almost three years too
late (D.E. 15). At this point there are no issues mandating an evidentiary hearing.
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An evidentiary hearing will be scheduled and counsel will be assigned sua sponte
if the District Court rejects the recommendation and if there are issues which mandate a
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 motion for appointment of counsel (D.E. 17) is denied without prejudice.
ORDERED this 11th day of December, 2017.
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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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