United States District Court, D. Kansas
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
matter is a petition for writ of habeas corpus filed under 28
U.S.C. § 2241. Petitioner is in federal custody at
USP-Leavenworth in Leavenworth, Kansas. Petitioner challenges
the execution of his federal sentence. The Court has examined
the record and finds that a responsive pleading is required.
filed a motion for leave to proceed in forma
pauperis (Doc. 4). Because the Application and attached
institutional account statement show that Petitioner is able
to pay the $5 habeas filing fee, the motion is denied.
Petitioner shall submit the $5.00 habeas filing fee by
December 13, 2019.
has also filed a motion for discovery, evidentiary hearing,
and appointment of counsel (Doc. 5). The Court, in its
discretion, may apply the Rules Governing Habeas Corpus
Cases, foll. 28 U.S.C. § 2254, to habeas petitions filed
under § 2241. See Rule 1(b), Rules Governing
Habeas Corpus Cases. Rule 8 provides that “[i]f the
petition is not dismissed, the judge must review the answer,
any transcripts and records of state-court proceedings, and
any materials submitted under Rule 7 to determine whether an
evidentiary hearing is warranted.” “District
courts are not required to hold evidentiary hearings in
collateral attacks without a firm idea of what the testimony
will encompass and how it will support a movant's
claim.” Pittman v. Fox, 766 Fed.Appx.
705, 723 (10th Cir. 2019) (quoting United States v.
Cervini, 379 F.3d 987, 994 (10th Cir. 2004)).
seeks an evidentiary hearing to allow him to testify and to
present legal arguments. (Doc. 5, at 1-2.) Petitioner has not
indicated why he is unable to make his statements and legal
arguments in writing. The Court finds that an evidentiary
hearing is not warranted at this time, and denies the request
for an evidentiary hearing without prejudice to the
Court's reconsideration of the request at a later time.
Court likewise finds that discovery is unnecessary at this
time. “A habeas petitioner, unlike the usual civil
litigant in federal court, is not entitled to discovery as a
matter of ordinary course.” Curtis v. Chester,
626 F.3d 540, 549 (10th Cir. 2010) (quoting Bracy v.
Gramley, 520 U.S. 899, 904 (1997)). The Court may permit
discovery under Habeas Rule 6 if the Petitioner provides
“reasons” for the request and the Court finds
“good cause” to allow discovery. Id. at
Rules 6(a) and 6(b); Smith v. Gibson, 197 F.3d 454,
459 (10th Cir. 1999) (petitioner entitled to discovery
“if, and to the extent that, the [district court] judge
in the exercise of his discretion and for good cause shown
grants leave to do so, but not otherwise.”). Petitioner
has not shown good cause for discovery.
Court denies without prejudice the request for appointment of
counsel. Petitioner requests counsel to represent him for the
purposes of discovery and an evidentiary hearing. The Court
has already held that discovery and an evidentiary hearing
are not warranted at this time. Petitioner has no
constitutional right to counsel in a federal habeas corpus
action. See Pennsylvania v. Finley, 481 U.S. 551,
555 (1987). Rather, the decision whether to appoint counsel
rests in the discretion of the court. Swazo v. Wyoming
Dep't of Corr. State Penitentiary Warden, 23 F.3d
332, 333 (10th Cir. 1994). A court may appoint counsel for a
§ 2241 petitioner if it “determines that the
interests of justice so require.” 18 U.S.C. §
3006A(a)(2)(B). Where an evidentiary hearing is not
warranted, appointment of counsel is not required. See
Engberg v. Wyo., 265 F.3d 1109, 1122 n.10 (10th Cir.
2001) (affirming denial of appointed counsel for habeas
petitioner where no evidentiary hearing was necessary);
see also Rules Governing § 2254 Cases, Rule
8(c), 28 U.S.C.A. foll. 2254 (“If an evidentiary
hearing is warranted, the judge must appoint an attorney to
represent a moving party who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.”). The Court
has not determined that an evidentiary hearing is warranted
at this time.
Petitioner's claims, his ability to present his claims,
and the complexity of the legal issues involved, the Court
finds appointment of counsel in this matter is not warranted.
See Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.
1991) (“In determining whether to appoint counsel, the
district court should consider a variety of factors,
including the merits of the litigant's claims, the nature
of the factual issues raised in the claims, the
litigant's ability to present his claims, and the
complexity of the legal issues raised by the claims.”).
Petitioner's motion is denied without prejudice to the
Court's reconsideration in the event the Court finds an
evidentiary hearing is required in this matter.
IS THEREFORE ORDERED BY THE COURT that
Petitioner's motion for leave to proceed in forma
pauperis (Doc. 2) is denied. Petitioner
shall submit the $5.00 filing fee by December 13,
2019. Failure to submit the filing fee by this date
may result in dismissal of this action without further notice
for failure to comply with this Court's order.
IS FURTHER ORDERED that Petitioner's motion for
discovery, evidentiary hearing, and appointment of counsel
(Doc. 5) is denied without prejudice.
IS FURTHER ORDERED that Respondent is hereby
required to show cause on or before December 18,
2019, why the writ should not be granted; that
Petitioner is granted until January 17,
2020, to file a traverse thereto, admitting or
denying under oath all factual allegations therein contained.
of this Order shall be transmitted to the parties and the
U.S. Attorney for the District of Kansas.