Opinion
CIVIL ACTION NO. 5:09CV-P118-R.
August 20, 2009
MEMORANDUM AND ORDER
Petitioner Stanley Leroy Stokes filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, a motion to proceed in forma pauperis, a motion for evidentiary hearing, and a motion for appointment of counsel. Each is addressed below.
A. Motion to proceed in forma pauperis
B. Motions for evidentiary hearing and for appointment of counsel
in forma pauperis DENIED as moot. 18 U.S.C. § 3006A 18 U.S.C. § 3006A 18 U.S.C. § 3006A Satter v. Class976 F. Supp. 879885
Because an answer has not yet been filed in this action, this Court is without all the information needed to make an evidentiary-hearing determination at this early stage in the litigation. Consequently, the request for an evidentiary hearing is premature. The request for appointment of counsel is also premature for the same reasons, and the Court does not believe that the interests of justice require the appointment of counsel at this early stage. Therefore,
IT IS ORDERED that Petitioner's motion for evidentiary hearing (DN 5) and motion for appointment of counsel (DN 6) are DENIED. Nothing in this Order, however, shall preclude Petitioner from requesting an evidentiary hearing and/or appointment of counsel at a future point in this action should additional circumstances arise to justify such relief.
C. Habeas petition
On preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, IT IS ORDERED as follows:
Rule 4 provides that unless "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, . . . the judge must order the respondent to file an answer, motion, or other response. . . ."
(1) The Clerk of Court shall effect service of the petition (DN 1) on Respondent and the Attorney General for the Commonwealth of Kentucky.
(2) Respondent shall file an answer herein within 40 days from the date of entry of this Order. Pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, "[t]he answer must address the allegations in the petition. In addition, it must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations." Respondent also shall submit portions of the state court record pertinent to the issues raised in the petition and answer, including but not limited to exhibits, docket sheets, transcripts, and pleadings.
(3) Petitioner may file a reply no later than 15 days following service of Respondent's answer.
(4) This matter is referred to Magistrate Judge W. David King pursuant to 28 U.S.C. §§ 636(b) for appropriate hearings, if any, findings of fact, and recommendations for disposition.