Espinoza v. Estep

Full title: PHILLIP ESPINOZA, Applicant, v. AL ESTEP, Warden, and Colorado Attorney…

Court: United States District Court, D. Colorado

Date published: Jun 15, 2006

Civil Action No. 05-cv-01112-MSK-PAC (D. Colo. Jun. 15, 2006)

Opinion

Civil Action No. 05-cv-01112-MSK-PAC.

June 15, 2006

ORDER

PATRICIA COAN, Magistrate Judge

This is a habeas corpus proceeding filed by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner filed four motions on January 27, 2006, which were referred to me on February 2, 2006. These include: motion to appoint counsel [doc. # 25]; motion for ruling on pending discovery motion [doc. # 26]; a motion to supplement traverse [doc. # 27]; and a motion to vacate traverse [doc. # 28].

1. Petitioner's Motion to Appoint Counsel [doc. # 25]

Plaintiff asks that the court direct the Clerk of Court to locate volunteer counsel to represent him. Under Rule 8(c) of the Rules Governing § 2255 Proceedings, "[i]f an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)." See Swazo v. Wyo. Dep't of Corr. State Pen. Warden, 23 F.3d 332, 333 (10^th Cir. 1994) ("[T]here is a right to counsel in a habeas case when the district court determines that an evidentiary hearing is required."). Although Petitioner asked for an evidentiary hearing, the court does not find any appropriate reason to hold an evidentiary hearing. Accordingly, there are no grounds for the appointment of counsel, and the motion is denied.

2. Petitioner's Motion for Ruling on Pending Discovery Motion [doc. # 26]; Motion to Supplement Traverse [doc. # 27]; and Motion to Vacate Traverse [doc. # 28].

Petitioner's motion for decision on pending motions, doc. #26, does not refer to any specific motion by title or date of filing, but it may relate to his previously filed motion to expand the record, filed November 16, 2005, [doc. # 20] which seeks an order allowing Petitioner to "expand the record with the attached exhibits as they are relevant to this habeas corpus proceeding." I cannot discern exactly what additional materials Petitioner seeks in his "discovery request" and because the briefs, opinions, and orders in his direct appeal and post-conviction proceedings are sufficient information, his motion is denied as moot. I further note that Judge Krieger previously denied Petitioner's motion for discovery [doc. #9, filed August 1, 2005], which sought copies of transcripts, and investigation and police reports from a criminal proceeding in Arapahoe County District Court. Judge Krieger reiterated that this Court may not consider new evidence for the first time in a habeas proceeding. See Order Denying Motion for Reconsideration, entered March 27, 2006 [doc. # 32].

Petitioner's motion to supplement his traverse, doc. # 27, is also properly denied as the supplements he seeks to file arise from his "numerous motions for discovery purposes." I ruled on February 2, 2006, that Petitioner was not entitled to a portion of the transcript from his trial. Notwithstanding Petitioner's insistence to the contrary, the court has sufficient information on which it can make an informed ruling on his Application.

The Petitioner's motion to vacate his traverse is based on his incorrect reading of FED.R.CIV.P. 5(d). This motion is denied.

It is therefore

ORDERED that the Petitioner's motion to appoint counsel [doc. # 25] is denied; it is further ORDERED that the Petitioner's motion for ruling on pending discovery motion [doc. # 26] is denied; it is further ORDERED that the Petitioner's motion to supplement traverse [doc. # 27] is denied; and it is further ORDERED that the Petitioner's motion to vacate traverse [doc. # 28] is denied as moot.