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Flores v. Holloway

United States District Court, M.D. Tennessee, Nashville Division

June 29, 2017

TRINIDAD MARTINEZ FLORES, No. 435145, Petitioner,
v.
WARDEN JAMES HOLLOWAY, Respondent.

          MEMORANDUM

          WAVERLY D. CRENSHAW, JR CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the Court are the Petitioner's two motions seeking the appointment of counsel (Doc. Nos. 3 and 12) as well as a “motion for status conference on appointment of counsel” (Doc. No. 21). The Respondent has filed Objections to the Petitioner's most recent motion (Doc. No. 22) and a memorandum in support of his Objections (Doc. No. 23).

         I. Introduction

         On February 1, 2017, Petitioner Trinidad Martinez Flores filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus challenging his 2011 conviction and sentence for conspiracy to sell more than three hundred pounds of marijuana, conspiracy to commit money laundering, possession with intent to deliver three hundred pounds of marijuana, and using proceeds from the sale of marijuana for which he currently is serving a term of imprisonment of fifty-six (56) years with in the Tennessee Department of Correction. (Doc. No. 1).

         By Order entered on March 3, 2017, the Court conducted a preliminary review of the petition and found that the Petitioner had stated at least one colorable claim for relief. (Doc. No. 7 at 1). The Court ordered the Respondent to file an answer, plead or otherwise respond to the petition. (Id.) The Respondent filed his response on April 24, 2017, contending that the Petitioner is not entitled to federal habeas relief. (Doc. No. 20).

         The Petitioner has filed two motions seeking the appointment of counsel (Doc. Nos. 3 and 12) as well as a “motion for status conference on appointment of counsel” (Doc. No. 21). The Respondent has filed Objections to the Petitioner's most recent motion (Doc. No. 22) and a memorandum in support of his Objections (Doc. No. 23). As the Respondent notes, in the Petitioner's most recent motion, the Petitioner appears not only to move for a status conference regarding his motion for court-appointed counsel but also for court-appointed counsel, discovery, and an extension of time to file a reply to the Respondent's response to the petition. (Id. at 1 n.1). The Court will address the Petitioner's pending motions herein.

         II. Motions for appointment of counsel

         In support of his requests for the appointment of counsel, the Petitioner states that he is an indigent layman who does not possess “the specialized education and knowledge necessary to proceed in this action in an adequate or competent fashion.” (Doc. No.12 at 1). He further states that he filed his petition “with the help of an Inmate legal helper and the petitioner is a Mexican who can not speak or read English.” (Id.)

         The 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. Dep't of Social Servs., 452 U.S. 18, 25 (1981). Thus, unlike criminal proceedings, there is no constitutional right to an appointed counsel in a civil action, such as this action. Willett v. Wells, 469 F.Supp. 748, 751 (E.D. Tenn. 1977), aff'd, 595 F.2d 1227 (6th Cir. 1979); see Williamson v. Autorama, Inc., No. 91-5759, 947 F.2d 947 (6th Cir. 1991)(citing Willett favorably). The appointment of counsel for a civil litigant is a matter within the discretion of the district court and will occur only under exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). When deciding whether exceptional circumstances exist, a district court considers the type of case, the ability of the pro se litigant to represent himself or herself, and the nature of the factual and legal issues involved. Id. at 606.

         The Petitioner's circumstances of proceeding pro se and indigent are typical to many prisoners and do not suggest anything exceptional in nature. Murray v. Giarratano, 492 U.S. 1, 7 (1989) (pro se litigant); Richmond v. Settles, 450 Fed. App'x 448, 452-53 (6th Cir. 2011) (indigent litigant); Debow v. Bell, No. 3:10-cv-1003, 2010 WL 5211611, at *1 (M.D. Tenn. Dec. 15, 2010) (inmates are typically indigent and untrained, pro se litigants).

         The Petitioner also asserts that his illiteracy and unfamiliarity with the English justify the appointment of counsel; however, neither circumstance constitutes an exceptional circumstance warranting the appointment of counsel in a civil case. See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (language barrier insufficient for tolling because record showed petitioner could clearly communicate with someone to assist him); Green v. United States, No. 11-59, 2013 WL 209019, at *2 (E.D. Ky. Jan. 13, 2013) (illiteracy and unfamiliarity with English does not relieve party from burden of showing genuine issue of material fact at summary judgment stage). The Petitioner has demonstrated that he can communicate with someone who can assist him with this case. See Cobas, 306 F.2d at 444 (noting that “the translator acting on behalf on a non-English speaking petitioner need have no qualification other than the ability to communicate in English”). With the assistance of an inmate legal helper, the Petitioner submitted a lengthy petition for habeas corpus relief. He does not allege that he suffers from any mental defects or physical disabilities that would limit his ability to prosecute his case. As long as the Petitioner has access to an inmate legal helper or a translator who can read and write English, and the Petitioner is clearly able to communicate with the helper or translator, the Court finds that the Petitioner is able to prosecute his case.

         Finally, the Petitioner maintains that his case is “legally complex, ” necessitating the appointment of counsel. (Doc. No. 12 at 1). According to the Respondent, the petition alleges exhausted sufficiency of the evidence claims, an exhausted ineffective assistance of counsel claim, and a number of procedurally defaulted claims. (Id.) While the Petitioner states that this case involves a “voluminous” state court record, the Respondent disagrees. (Id.) Considering all of the arguments made by both sides and the record currently before the Court, the Court finds that the Petitioner possesses the ability to represent himself under the circumstances set forth in the Petitioner's pending motions. His motions seeking the appointment of counsel, therefore, will be denied.

         III. Motion for a status conference

         The Petitioner seeks a status conference regarding “scheduling” and “certain issue[s] related to the voluminous record in the underlying criminal case and state post-conviction proceeding.” (Doc. No. 21 at 2). The Petitioner does not identify or explain what issues he believes require a status conference, and ...


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