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Gonzales v. Cline

United States District Court, D. Kansas

December 1, 2017

GERALD E. GONZALES, Petitioner,
v.
WARDEN SAM CLINE[1], Respondent.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2254. Petitioner proceeds pro se and paid the filing fee.[2]

         Screening

         The Court is required to examine habeas corpus petitions promptly and to dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases. The timeliness of a petition may be raised sua sponte by the Court. See Day v. McDonough, 547 U.S. 198, 209 (2006).

         Motion for appointment of counsel

         Petitioner moves for the appointment of counsel. An applicant for habeas corpus relief has no constitutional right to the appointment of counsel. See Swazo v. Wyo. Dept. of Corr., 23 F.3d 332, 333 (10th Cir. 1994)(“[T]here is no constitutional right to counsel beyond the appeal of a criminal conviction, and … generally appointment of counsel in a § 2254 proceeding is left to the court's discretion.”). Rather, the court may appoint counsel when “the interests of justice so require” for a petitioner who is financially eligible. See 18 U.S.C. § 3006A(1)(2)(b).

         The court has studied the petition and concludes that the appointment of counsel is not warranted. The petitioner is able to express his claims, there is no suggestion that this matter is unusually complicated, and it does not appear that an evidentiary hearing will be needed in this matter.

         The petition

         The petition lists three grounds for relief: (1) that petitioner is held on a “false claim”, which he supports by reference to a change in his Presentence Investigation; (2) that the State used a false police report to detain him; and (3) actual innocence.

         Timeliness of the petition

         Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgement of a State court, ” running from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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