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Saylor v. Wooten

United States District Court, D. Nebraska

December 26, 2017

JAMES M. SAYLOR, Petitioner,
v.
JEFF WOOTEN, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court on preliminary review of Petitioner James M. Saylor's Petition for Writ of Habeas Corpus (Filing No. 1), as well as Saylor's Motion to Amend (Filing No. 2), Motion for Appointment of Counsel (Filing No. 3), Motion to Permit Non-Conforming Petition or to Grant Extension (Filing No. 4), and Motion for Copies (Filing No. 11). The court will address the petition and each motion in turn.

         PRELIMINARY REVIEW

         The court must conduct an initial review of Petitioner James M. Saylor's Petition for Writ of Habeas Corpus (Filing No. 1) to determine whether his claims are potentially cognizable in federal court. A habeas corpus petition must “substantially follow either the form appended to [the Rules Governing Section 2254 Cases in the United States District Courts], or a form prescribed by a local district-court rule.” See Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts.

         Here, Saylor acknowledges that he did not use the Form AO 241, Petition for Writ of Habeas Corpus by a Person in State Custody. Saylor has filed a Motion to Amend (Filing No. 2) and a Motion to Permit Non-Conforming Petition or to Grant Extension (Filing No. 4), in which Saylor explains that he “was unaware that the petition for a writ of habeas corpus needed to be filed on November 9, 2017, . . . until basically four days before the deadline.” (Filing No. 2 at CM/ECF p.1.) Saylor states that he did not have the proper forms nor adequate time to properly prepare his habeas petition before having to send the petition to the court for filing by the November 9th deadline. (Id.) Saylor, thus, asks the court for leave to file an amended habeas petition. (Filing No. 2; Filing No. 4.)

         Because Saylor's petition is insufficient, the court will not act upon it. However, the court will grant Saylor's request for additional time to amend his petition. (Filing No. 2; Filing No. 4.) Saylor shall have an additional 30 days in which to file an amended petition for writ of habeas corpus.

         MOTION FOR APPOINTMENT OF COUNSEL

         Saylor has also filed a Motion for Appointment of Counsel. (Filing No. 3). “[T]here is neither a constitutional nor statutory right to counsel in habeas proceedings; instead, [appointment] is committed to the discretion of the trial court.” McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). As a general rule, counsel will not be appointed unless the case is unusually complex or the petitioner's ability to investigate and articulate the claims is unusually impaired or an evidentiary hearing is required. See, e.g., Morris v. Dormire, 217 F.3d 556, 558-59 (8th Cir. 2000), cert. denied, 531 U.S. 984 (2000); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). See also Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts (requiring appointment of counsel if an evidentiary hearing is warranted). The court has carefully reviewed the record and finds there is no need for the appointment of counsel at this time.

         In the event the court does not appoint counsel, Saylor asks the court for an attorney referral as he could afford to pay “a reasonable fee.” (Filing No. 3 at CM/ECF p.1.) The court will not make a specific referral but will inform Saylor that persons in need of assistance from a lawyer may contact the Nebraska State Bar Association's lawyer referral service. The service is at 635 South 14th Street, P.O. Box 81809, Lincoln, Nebraska 68501-1809. The telephone number is (402) 475-7091 ext. 132, and the fax number is (402) 475-7098.

         MOTION FOR COPIES

         Saylor also asks the court to send him “copies of all documents currently in the court file or elsewhere at the court, along with the additional documents before the Court as a result of Petitioner's latest filings, and that such be provided free of charge.” (Filing No. 11.) This court's local rules provide, in relevant part:

(f) Official Record. The clerk does not maintain a paper court file in any case unless required by law or local rule. When a document is filed electronically, the official record is the electronic recording of the document as stored by the court, and the filing party is bound by the document as filed.
(1) Documents Filed Nonelectronically. The official record also includes documents filed nonelectronically under local rule.
(2) Original Documents Scanned and Discarded. The clerk scans and discards original documents brought to the clerk for filing unless the document's size or nature requires that it be kept in a paper format. An attorney who wishes to have an original document returned after the clerk scans and uploads it to the System may, before submitting the document to the clerk, ask the assigned judge for written authorization for the document's return. Authorization is granted on a case-by-case basis. The ...

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