United States District Court, M.D. Tennessee, Nashville Division
JUSTIN B. CONRAD Petitioner,
BRUCE WESTBROOKS Respondent.
MEMORANDUM AND ORDER
A.TRAUGER UNITED STATES DISTRICT JUDGE.
instant pro se § 2254 habeas corpus action was
transferred (Docket Entry No. 50) to this Court on February
8, 2017 from the Western District of Tennessee.
to being transferred, the petitioner filed thirteen (13)
motions in the case which remain pending today. These include
three motions for the appointment of counsel (Docket Entry
Nos. 23, 28 and 37), two motions for discovery and the
production of documents (Docket Entry Nos. 24 and 36), a
motion to comply (Docket Entry No. 29), five motions (Docket
Entry Nos. 31, 33, 35, 39 and 47) to “Incorporate
Documented Evidence under State and Federal Law”, a
motion (Docket Entry No. 34) to compel counsel to surrender
his case file, and a motion for change of venue (Docket Entry
Supreme Court has held that “an indigent's right to
appointed counsel ....... exists only where the litigant may
lose his physical liberty if he loses the litigation.”
Lassiter v. Department of Social Services, 452 U.S.
18, 25 (1981). Thus, unlike criminal proceedings, there is no
constitutional right to appointed counsel in a civil habeas
corpus action. Lanier v. Bryant, 332 F.3d 999, 1006
(6th Cir. 2003).
appointment of counsel for a civil litigant is a matter
within the sound discretion of the district court and will
only occur under exceptional circumstances. Id.;
Lavado v. Keohane, 992 F.2d 601 (6th Cir.
1993). In this instance, the petitioner has alleged simply
that he is not trained in the law and requires the assistance
of counsel. His ignorance of the law, however, standing
alone, does not constitute the type of exceptional
circumstances needed to justify an appointment of counsel.
Accordingly, petitioner's motions (Docket Entry Nos. 23,
28 and 37) for appointment of counsel are DENIED.
petitioner has also filed two motions (Docket Entry Nos. 24
and 36) requesting discovery and the production of documents.
The respondent has submitted responses (Docket Entry Nos. 26
and 43) in opposition to these motions, to which the
petitioner has offered replies (Docket Entry Nos. 27 and
habeas petitioner, unlike other civil litigants in federal
court, is not entitled to discovery as a matter of ordinary
course. Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Thus, the broad discovery provisions of the Federal Rules of
Civil Procedure do not apply to habeas proceedings.
Harris v. Nelson, 394 U.S. 286, 295 (1969).
Nevertheless, discovery within the context of a habeas action
may be allowed upon a showing of good cause. Rule 6(a), Rules
Governing § 2254 Cases.
of the Rules Governing § 2254 Cases requires the
respondent to provide a case record with his answer. The
respondent has submitted such a record with his answer.
See Docket Entry No.16. Until the necessity for an
evidentiary hearing becomes apparent from the existing
record, the petitioner is unable to show cause sufficient to
allow discovery at this time. See Harris v. Nelson,
supra at 394 U.S. 300 (at any time during a habeas
proceeding, when the court considers it necessary to do so,
discovery procedures may be fashioned to allow for the
factual development of an issue). As a consequence, the
petitioner's discovery motions are PREMATURE and are
DENIED at this time for that reason.
petitioner has filed a motion (Docket Entry No. 29) to
compel. The motion, however, does not identify who is to be
compelled and what they should be compelled to do. Thus, this
motion has no merit and is DENIED.
are five motions (Docket Entry Nos. 31, 33, 35, 39 and 47)
asking the Court to allow the “documented
evidence” attached to them to be made exhibits to the
record. These motions are GRANTED. The “documented
evidence” that is now a part of the record will be
given whatever weight it deserves.
petitioner has filed a motion (Docket Entry No. 34) asking
the Court to compel his attorney to surrender
petitioner's case file. As noted above, issues regarding
discovery are premature at this time. Therefore, this motion
is DENIED as well. Should it later appear that an evidentiary
hearing is necessary to resolve petitioner's claims, he
will be free to re-file this motion.
is a motion (Docket Entry No. 42) pending which seeks a
change of venue, asking the Court to have this matter
transferred to this judicial district. Clearly, the order
(Docket Entry No. 50) directing such a transfer has rendered
this motion MOOT.
petitioner has filed an Amended Petition (Docket Entry No.
38). In the original Petition (Docket Entry No. 1), the
petitioner alleges the ineffective assistance of trial
counsel. The Amended Petition adds four new issues that were
not included in the original Petition. These issues involve
(1) the ineffective assistance of post-conviction counsel;
(2) a Brady claim; (3) a prosecution witness who
provided perjured testimony; and (4) the non-disclosure of
exculpatory evidence that precluded a finding that the
question of suppression had been waived. The respondent has
submitted responses (Docket Entry Nos. 44 and 46) in
opposition to the Amended Petition.
respondent filed an Answer (Docket Entry No. 19) to the
original Petition on August 25, 2015. The Amended Petition
was filed on November 8, 2016, more than one year later.
Thus, the petitioner is unable to amend his original Petition
except “with the opposing party's written consent
or the court's leave.” Rule 15(a)(2), Fed.R.Civ.P.
The petitioner does not have the ...