United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION FOR COUNSEL, GRANTING MOTION TO
DISMISS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
DANIEL BREEN, UNITED STATES DISTRICT JUDGE
Darius Amontee Cole, a Tennessee state prisoner, has filed an
amended pro se petition under 28 U.S.C. § 2254
seeking habeas corpus relief (“Amended
Petition”). (Docket Entry (“D.E.”) 12.)
Currently before the Court are Petitioner's motion for
appointment of counsel, (D.E. 20), and the motion of
Respondent, Shawn Phillips, to dismiss the Amended Petition
as untimely, (D.E. 18). For the reasons that follow, the
Court denies the motion for counsel and grants the motion to
16, 2009, when he was twenty years old, a juvenile
delinquency petition was filed against Petitioner alleging
two counts of rape of a child, which occurred in 2002 when he
was thirteen years old. The juvenile court ordered a mental
health evaluation and transferred the case to the circuit
court for the inmate to be tried as an adult. In November
2009, a Madison County grand jury indicted Cole on two counts
of rape of a child. (D.E. 15-1 at PageID 108-10.) The State
thereafter filed a notice of request for enhanced punishment
based on his previous criminal history, which included two
convictions for attempted aggravated rape and one conviction
for aggravated sexual battery, among other things.
(Id. at PageID 118.)
agreed to plead guilty to both counts of rape of a child in
exchange for concurrent twenty-year sentences. (Id.
at PageID 156-58.) On September 20, 2010, the trial court
entered judgments consistent with the terms of the plea
agreement. (Id. at PageID 159-60.) Cole did not seek
a direct appeal.
January 30, 2012, he filed a pro se petition for
post-conviction relief in the state court. (D.E. 15-2 at
PageID 161.) The clerk of court sent Petitioner a letter
indicating several deficiencies in his filing, (id.
at PageID 162), which he did not remedy. On October 26, 2015,
the trial court summarily denied the petition as untimely and
for failing to state a colorable claim for relief.
(Id. at PageID 163.) No. appeal was taken.
filed his federal habeas petition (“Petition”) on
June 5, 2017. (D.E. 1.) In an Amended Petition filed on July
17, 2017, he asserted two claims of ineffective assistance of
counsel regarding the pre-trial investigation of his case and
the validity of his guilty plea. (D.E. 12 at PageID 86, 89.)
He also raised one claim of prosecutorial misconduct relating
to the prosecution's use of his juvenile record.
(Id. at PageID 87.)
August 17, 2017, Respondent filed a motion to dismiss the
Amended Petition as untimely. (D.E. 18.) Petitioner responded
to the motion, (D.E. 19), and subsequently filed a motion for
appointment of counsel, (D.E. 20).
Motion for Appointment of Counsel
Amended Petition, the inmate asserts that he “need[s]
coun[s]el to support this petition” because he is
intellectually disabled and has “a history in and out
[of] mental institution[s].” (D.E. 12 at PageID 94.) In
his later-filed motion for appointment of counsel, he argues
that he needs an attorney to help him amend his Amended
Petition because he “is unlearned in the law.”
(D.E. 20 at PageID 241-42.) The Court liberally construes the
documents together as arguing for appointment of counsel
based on Petitioner's alleged mental or intellectual
disabilities and lack of legal training.
of counsel for an indigent petitioner is mandatory
“[i]f an evidentiary hearing is warranted.”
Rules Governing Section 2254 Cases in the United States
District Courts, Rule 8(c). A court will also appoint
counsel when “the interests of justice or due process
so require.” Mira v. Marshall, 806 F.2d 636,
638 (6th Cir. 1986) (citing 18 U.S.C. § 3006A(g)). The
determination of whether the interests of justice or due
process require the appointment of counsel is left to the
sound discretion of the court. Id. at 638. Factors
to be considered include the legal and factual complexity of
the case “and the petitioner's ability to
investigate and present his claims . . . .” Thomas
v. Morgan, No. 2:04-cv-02231-JDB-dkv, 2016 WL 1030153,
at *6 (W.D. Tenn. Mar. 10, 2016) (quoting Hoggard v.
Purkett, 29 F.3d 469, 471 (8th Cir. 1994)).
interests of justice do not require that an attorney be
appointed for Cole. His lack of legal training is common to
most prisoners and his alleged intellectual or mental
disabilities have not prevented him from presenting his
claims and arguments. He has been able, perhaps with help, to
submit cogent allegations and arguments in this case. His
Amended Petition, for instance, clearly and directly
articulates three grounds for relief. (D.E. 12 at PageID 86,
87, 89.) His Response to the motion to dismiss, which seems
to be in his own words, is likewise coherent and reveals that
he understands the need to explain why he filed his Petition
late. (D.E. 19 at PageID 238.) The equitable tolling issue
thus has not proven to be too complex for him. In addition,
because he is not entitled to equitable tolling, as will be
discussed, he has no need for attorney assistance in further
amending his claims.
the motion for appointment of counsel is DENIED. See
Lambert v. Perry, No. 1:16-cv-02783-STA-egb, 2017 WL
4295232, at *3 (W.D. Tenn. Sept. 27, 2017) (denying motions
of semi-literate petitioner for appointment of counsel where,
“[w]ith the help of the prison legal aide, ”
petitioner was able to “prepare . . . cogent
documents”); Flores v. Holloway, No.
3:17-cv-00246, 2017 WL 2812908, at *2 (M.D. Tenn. June 29,
2017) (denying counsel where the petitioner had “access
to an inmate legal ...