Opinion
C.A. No. C-05-448.
July 7, 2006
ORDER DENYING WITHOUT PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL AND ORDER GRANTING MOTION FOR EXTENSION OF TIME
Petitioner is an inmate in the Texas Department of Criminal Justice — Institutional Division, and is currently incarcerated at the McConnell Unit in Beeville, Texas. Proceeding pro se, petitioner filed a petition pursuant to 28 U.S.C. § 2254, challenging his "security precaution" designation by TDCJ-CID. On June 16, 2006, a memorandum and recommendation was filed, recommending dismissal because petitioner should have filed his complaint as a lawsuit pursuant to 42 U.S.C. § 1983 (D.E. 27). Petitioner filed objections, and is requesting appointment of counsel, or in the alternative an extension of time to supplement his objections after seeking the assistance of hired counsel (D.E. 27).
There is no constitutional right to counsel in federal habeas proceedings. Johnson v. Hargett, 978 F.2d 855 (5th Cir. 1992). Rule 8 of the Rules Governing § 2254 Cases requires that counsel be appointed if the habeas petition raises issues which mandate an evidentiary hearing. A recommendation to dismiss the petition is pending and at this stage of the proceedings, an evidentiary hearing is unnecessary, and appointment of counsel is counsel at this time is not warranted.
Counsel will be assigned sua sponte if there are issues which mandate an evidentiary hearing. Moreover, counsel may be assigned if discovery is ordered and issues necessitating the assignment of counsel are evident. Rule 6(a) of the Rules Governing § 2254 Cases; Thomas v. Scott, 47 F.3d 713, 715 n. 1 (5th Cir. 1995).
Accordingly, petitioner's motion for appointment of counsel (D.E. 29-1) is denied without prejudice. Petitioner's motion for an extension of time to file supplemental objections (D.E. 29-1) is granted. Petitioner's supplemental objections are due on or before Monday, July 31, 2006. ORDERED.