Caldwell v. State of Utah
Filing
13
MEMORANDUM DECISION and ORDER GRANTING MOTIONS TO AMEND PETITION; denying 5 Motion to Appoint Counsel; denying 6 Motion for Service of Process (Prisoner); granting 7 Motion to Amend/Correct Petition; denying 8 Motion to St ay, The motion is too confusing to understand; however, Petitioner may renew it if he wishes by being more clear about his request; granting 11 Motion to Amend/Correct petition. The Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide. Signed by Judge Tena Campbell on 9/24/2015. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JOHNNY RAY CALDWELL,
Petitioner,
v.
MEMORANDUM DECISION
& ORDER GRANTING MOTIONS TO
AMEND PETITION
Case No. 2:15-CV-45 TC
STATE OF UTAH,
District Judge Tena Campbell
Respondent.
Petitioner, Johnny Ray Caldwell, an inmate at Salt Lake County Jail, filed a pro se habeas
corpus petition.1 The Court now grants Petitioner's motions to amend his petition and gives
Petitioner the following guidance.
INSTRUCTIONS TO PETITIONER
Under Rule 8 of the Federal Rules of Civil Procedure an initial pleading is required to
contain "(1) a short and plain statement of the grounds upon which the court's jurisdiction
depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to
relief, and (3) a demand for judgment for the relief the pleader seeks."2 The requirements of Rule
8(a) are intended to guarantee "that [respondents] enjoy fair notice of what the claims against
them are and the grounds upon which they rest."3
1
See 28 U.S.C.S. § 2254 (2015).
2
Fed. R. Civ. P. 8(a).
3
TV Commc'ns Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022
(10th Cir. 1992).
Pro se litigants are not excused from compliance with the minimal pleading requirements
of Rule 8. "This is so because a pro se [litigant] requires no special legal training to recount the
facts surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted."4 Moreover, "it is not the proper
function of the Court to assume the role of advocate for a pro se litigant."5 Thus, the Court
cannot "supply additional facts, [or] construct a legal theory for [petitioner] that assumes facts
that have not been pleaded."6
Petitioner should consider the following general points before refiling his petition. First,
the revised petition must stand entirely on its own and shall not refer to, or incorporate by
reference, any portion of the original petition or any other documents previously filed by
Petitioner.7 Second, the petitioner must clearly state who his custodian is and name that person
(a warden or ultimate supervisor of an imprisonment facility) as the respondent.8 Third,
Petitioner may generally not bring civil-rights claims as to the conditions of his confinement in a
habeas corpus petition. Fourth, any claims about Petitioner's underlying conviction or sentencing
should be brought under 28 U.S.C.S. § 2254 (2015); any claims about the execution of
Petitioner's sentence should be brought under 28 U.S.C.S. § 2241 (2015). Fifth, Petitioner
4
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).
5
Id. at 1110.
6
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
7
See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment supercedes original).
8
See R. 2, Rs. Governing § 2254 Cases in the U.S. Dist. Courts.
2
should seek help to prepare initial pleadings from legal resources (e.g., contract attorneys)
available where he is held.
MOTION FOR APPOINTED COUNSEL
The Court now evaluates Petitioner's motion for appointed counsel. The Court initially
notes that Petitioner has no constitutional right to appointed pro bono counsel in a federal habeas
corpus case.9 Moreover, because no evidentiary hearing is required here, Petitioner has no
statutory right to counsel.10 However, the Court may in its discretion appoint counsel when "the
interests of justice so require" for a "financially eligible person" bringing a § 2254 petition.11
The Court has reviewed the filings in this case and determines that justice does not
require appointed counsel at this time. First, it is yet unclear that Petitioner has asserted any
colorable claims.12 Second, Petitioner has shown "the ability to investigate the facts necessary
for [the] issues and to articulate them in a meaningful fashion."13 Finally, the issues in this case
appear "straightforward and not so complex as to require counsel's assistance."14 The Court thus
denies for now Petitioner's motion for appointed counsel.
9
See United States v. Lewis, No. 97-3135-SAC, 91-10047-01-SAC, 1998 WL 1054227, at *3 (D. Kan.
December 9, 1998).
10
See Rule 8(c), R. Governing § 2254 Cases in U.S. Dist. Courts.
11
See 18 U.S.C.S. § 3006A(a)(2)(B) (2015).
12
See Lewis, 1998 WL 1054227, at *3; Oliver v. United States, 961 F.2d 1339, 1343 (7th Cir. 1992).
13
Lewis, 1998 WL 1054227, at *3; Oliver, 961 F.2d at 1343.
14
Lewis, 1998 WL 1054227, at *3; Oliver, 961 F.2d at 1343.
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ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Petitioner's motions to amend his petition are GRANTED.15 Petitioner shall have
THIRTY DAYS from the date of this Order to submit his amended petition.
(2) The Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide with a
proper form petition and/or civil-rights complaint for him to complete, according to the
directions.
(3) If Petitioner fails to timely cure the above-noted deficiencies, as instructed here, this
action will be dismissed without further notice.
(4) Petitioner's motion for appointed counsel is DENIED.16 However, if it later appears
that counsel may be needed or of specific help, the Court may appoint an attorney to appear on
Petitioner's behalf.
(5) Petitioner's motion for service of process is DENIED.17 Such a motion is unnecessary
in a federal habeas case because the Court is required by rule to screen the petition and order a
respondent to answer if warranted.
15
(See Docket Entry #s 7 & 11.)
16
(See Docket Entry # 5.)
17
(See Docket Entry # 6.)
4
(6) Petitioner's motion to stay proceedings is DENIED.18 The motion is too confusing to
understand; however, Petitioner may renew it if he wishes by being more clear about his request.
DATED this 24th day of September, 2015.
BY THE COURT:
_____________________________
JUDGE TENA CAMPBELL
United States District Court
18
(See Docket Entry # 8.)
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