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Cole v. Phillips

United States District Court, W.D. Tennessee, Eastern Division

February 26, 2018

DARIUS AMONTEE COLE, Petitioner,
v.
SHAWN PHILLIPS, Respondent.

          ORDER DENYING MOTION FOR COUNSEL, GRANTING MOTION TO DISMISS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE

         Petitioner, 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 dismiss.

         BACKGROUND

         On June 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.)

         Petitioner 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.

         On 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.

         Cole 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.)

         DISCUSSION

         On 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).

         1. Motion for Appointment of Counsel

         In the Amended Petition, the inmate asserts that he “need[s] coun[s]el to support this pe[]tition” 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.

         Appointment 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)).

         The 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.

         Accordingly, 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 ...


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