United States District Court, D. Kansas
ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se. Because he submitted
the filing fee, the Court denies his motion to proceed in
forma pauperis as moot.
motion to appoint 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 (10thCir.
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 considered the record and declines to appoint
counsel at this time. It appears that petitioner is able to
articulate his claims for relief and is well familiar with
Petitioner was convicted in the District Court of Shawnee
County, Kansas, of attempted first-degree murder, aggravated
battery, and criminal possession of a firearm.
Kansas Court of Appeals (KCOA) summarized the factual
background as follows:
Wayne “Squirt” Brandon, Jr., was shot in front of
his home sometime between 9:35 and 9:55 p.m. Immediately
after the shooting, Brandon identified Allen as the shooter
and informed police that Allen drove a white Cadillac.
At trial, Brandon again identified Allen as the shooter.
Several of Brandon’s neighbors testified they heard
gunshots but did not see the shooting or see Allen or his
white Cadillac in the area of the shooting. Russell Marshall,
who was incarcerated with Allen after the shooting, testified
Allen admitted he shot Squirt, and gave Marshall a letter to
deliver to Squirt in which Allen offered Squirt “a
thousand dollars and a Cadillac if he didn’t show up
Allen admitted writing two letters to Brandon offering him
money, but maintained the letters were counteroffers in
response to Brandon’s attempt to extort an even larger
sum of money from Allen. Allen denied giving Marshall a
letter for Brandon or telling Marshall that he shot Brandon.
State v. Allen, 2010 WL 3636269, at *1.
appeal, proceeding with appointed counsel Gerald Wells,
petitioner alleged ineffective assistance of trial counsel.
The KCOA remanded the matter to the district court for a
hearing under State v. Van Cleave, 716 P.2d 580
(2016). State v. Allen, 238 P.3d 331
(Table), 2010 WL 3636269 (Kan.Ct.App. Sep. 10,
remand, petitioner proceeded pro se with standby counsel and
offered the testimony of several witnesses. The district
court denied the claims for relief. On appeal, Mr. Wells
again was appointed to represent petitioner. The KCOA denied
relief. State v. Allen, 338 P.3d 24 (Table), 2014 ...