Opinion
Civil Action No. 09-cv-00455-BNB.
June 3, 2009
ORDER
Applicant Wendel (Robert) Wardell, Jr., has filed pro se on May 21, 2009, a document titled "Combined Objection to U.S. Magistrate Judge's May 6, 2009[,] Order Directing Applicant to File Second Amended Application and Request for Appointment of Counsel." Mr. Wardell is a prisoner in the custody of the United States Bureau of Prisons at a federal prison in Pine Knot, Kentucky. Mr. Wardell initiated this action by filing pro se in the United States District Court for the Eastern District of Kentucky a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. In an order filed on March 3, 2009, the Eastern District of Kentucky transferred the action to this court. On May 4, 2009, Mr. Wardell filed an amended pleading on the proper form. On May 6, 2009, Magistrate Judge Boland ordered Mr. Wardell to file a second amended application to clarify the claims he is asserting in this action and to provide specific factual allegations in support of each asserted claim. Mr. Wardell argues in his objections that, because he is required to exhaust state remedies, he has presented his claims to this Court exactly how they were presented to the state courts. Mr. Wardell also asserts that he cannot comply with Magistrate Judge Boland's order unless the Court appoints counsel to represent him.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter designated to a magistrate judge to hear and determine where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. The Court has reviewed the file and finds that Magistrate Judge Boland's May 6 order is not clearly erroneous or contrary to law. Mr. Wardell's argument that he has presented his claims to this Court exactly as they were presented to the state courts is not relevant to Magistrate Judge Boland's determination, with which the Court agrees, that it is not clear what those claims are and that the claims lack factual support. Therefore, Mr. Wardell's objections will be overruled.
Mr. Wardell's request for appointment of counsel will be denied as premature. "In 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). Accordingly, it is
ORDERED that Mr. Wardell's objections to Magistrate Judge Boland's May 6, 2009, order are overruled. It is
FURTHER ORDERED that Mr. Wardell's request for appointment of counsel is denied as premature. It is
FURTHER ORDERED that Mr. Wardell shall have thirty (30) days from the date of this order to file a second amended complaint as directed if he wishes to pursue his claims in this action.