Opinion
Civil Action No. 11-cv-01813-MSK-BNB.
November 10, 2011
ORDER
This matter arises on the following:
(1) The applicant's Motion Requesting Appointment of Counsel [Doc. #14, filed 09/06/2011]; and
(2) Applicant's Motion Requesting Decision on His Previous Motion Addressing Appointment of Counsel, and Motion Requesting an Extension of Time to Respond to Respondent's Answer to Petition for Writ of Habeas Corpus [Doc. #17, filed 10/28/2011].
The applicant filed an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on July 12, 2011 [Doc. #1] (the "Application"). The applicant requests appointment of counsel to assist him with his case. Section 3006A, 18 U.S.C., provides in pertinent part:
Whenever the United States magistrate or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28.18 U.S.C. § 3006A(a)(2)(B).
Although the applicant is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 and may, therefore, qualify financially for appointment of counsel, "[i]n most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing." Johnson v. Avery, 393 U.S. 483, 487 (1969) (emphasis added). The court has not yet determined whether an evidentiary hearing is necessary. Therefore, the applicant's request for appointment of counsel is premature.
The applicant also seeks an unspecified extension of time to file a reply to the respondent's answer to his Application. The applicant may have a 30 day extension to file his reply. Accordingly,
IT IS ORDERED:
(1) The applicant's Motion Requesting Appointment of Counsel [Doc. #14] is DENIED WITHOUT PREJUDICE; and
(2) Applicant's Motion Requesting Decision on His Previous Motion Addressing Appointment of Counsel, and Motion Requesting an Extension of Time to Respond to Respondent's Answer to Petition for Writ of Habeas Corpus [Doc. #17] is DENIED WITHOUT PREJUDICE to the extent it seeks appointment of counsel and GRANTED insofar as it seeks an extension of time to file a reply to the respondent's answer to his Application. The applicant shall file his reply within 30 days of the date of this order.