United States District Court, E.D. Tennessee, at Knoxville Division
MEMORANDUM AND ORDER
PAMELA L. REEVES, District Judge.
This is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by Corey Alan Bennett ("Petitioner"). Petitioner has also filed a Motion for Appointment of Counsel [Doc. 2]. Respondent has filed a Motion to Consolidate with Case No. 3:14-cv-158 [Doc. 6]. For the following reasons, Respondent's Motion to Consolidate will be DENIED as moot, Petitioner's Motion for Appointment of Counsel [Doc. 2] will be DENIED, and Petitioner petition for a writ of habeas corpus [Doc. 1] will be DENIED. This action will be DISMISSED without prejudice.
I. Petitioner's Motion for Appointment of Counsel [Doc. 2].
The constitutional right to counsel in criminal prosecutions does not apply to habeas corpus cases. Barker v. Ohio, 330 F.2d 594, 595 (6th Cir. 1964). Rather, the appointment of counsel for an indigent inmate in a non-capital case is discretionary, unless an evidentiary hearing is ordered. See Rule 8(c), Rules Governing Section 2254 Cases. In exercising discretion as to whether to appoint counsel, several factors should be considered, including the nature of the case, whether the issues are legally or factually complex, and a petitioner's ability to present his claims to the court. Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). Here, the claim presented in Petitioner's petition is not complex. Additionally, in light of the Court's decision to dismiss the petition, the Court finds that the appointment of counsel is not warranted here.
II. Respondent's Motion to Consolidate [Doc. 6].
Respondent has moved to consolidate this case with Civil Action No. 3:14-cv-158, arguing that Petitioner filed a substantially identical petition in that case [Doc. 6]. In light of the order dismissing Petitioner's petition without prejudice in that case, entered on March 12, 2015, see Civil Action No. 3:14-cv-158 [Doc. 19], the Court finds that Respondent's motion has been rendered moot and will, therefore, dismiss it.
III. Petitioner's § 2254 Petition.
Petitioner was convicted of contempt of court by the Knox County Circuit Court, Fourth Circuit [Doc. 1]. For this conviction, Petitioner was given a fifty-three day sentence [Doc. 1]. Petitioner now alleges that the detainer placed on him to serve his contempt sentence was illegal because the sentence has already expired [Doc. 1]. While Respondent did not file an answer to Petitioner's petition, the Court may take judicial notice of the facts contained in Respondent's motion to dismiss in Civil Action No. 3:14-cv-158, Doc. 15. Respondent's motion to dismiss in Petitioner's related case states that Petitioner's state habeas proceeding challenging this conviction is still pending in state court. Civil Action No. 3:14-cv-158, Doc. 15.
A state prisoner's petition for a writ of habeas corpus will not be granted unless he demonstrates that he has exhausted his available state court remedies, or that there is an absence of state corrective process, or that resort to those remedies will be futile. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509 (1982). Each and every claim set forth in a federal habeas corpus petition must have first been presented to the state appellate court. See Picard v. Connor, 404 U.S. 270 (1971).
Here, the record indicates that Petitioner filed a state petition for habeas corpus relief in Knox County, Tennessee in April, 2014. The state petition raises the same claim that Petitioner now attempts to raise in his federal habeas corpus petition. Accordingly, because Petitioner has failed to bear his burden of showing exhaustion, Petitioner's petition for a writ of habeas corpus will be dismissed without prejudice.
For the reasons stated above, Respondent's Motion to Substitute Counsel [Doc. 7] is hereby GRANTED, Respondent's Motion to Consolidate [Doc. 6] is hereby DENIED as moot, and Petitioner's Motion for Appointment of Counsel [Doc. 2] is hereby DENIED. A separate order will enter dismissing ...