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Speck v. Gross

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

May 24, 2018

KARI D. SPECK, # 490340, Petitioner,
v.
WARDEN GLORIA GROSS, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Kari D. Speck, an inmate of the Tennessee Prison for Women in Nashville, Tennessee, has filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus challenging her 2011 conviction and sentencing for second degree murder and aggravated robbery. (Doc. No. 1 at 1). The Petitioner has filed a motion to appoint counsel (Doc. No. 3) and a motion for an evidentiary hearing (Doc. No. 7).

         I. Introduction

         On June 16, 2011, the Petitioner pled guilty to one count of second-degree murder and to aggravated robbery. (Doc. No. 1); State v. Speck, No. M2016-00254-CCA-R3-CD, 2016 WL 4199204, at *1 (Tenn. Crim. App. Aug. 8, 2016). The Petitioner was sentenced as a Range I, standard offender and received concurrent sentences of thirty years and twelve years, respectively. Id. The “special conditions” box on the judgment form for the second degree murder conviction states, “Defendant has agreed to plea outside of the range of punishment.” Id. According to the plea agreement, both sentences were to be served at 100%; however, the judgment from the aggravated robbery conviction reflects a release eligibility of 30%. Id.

         On April 10, 2012, the Petitioner, through counsel, filed a petition for post-conviction relief in the Criminal Court of Putnam County. (Doc. No. 1 at 3). In June of 2012, the Petitioner's counsel advised her to withdraw her petition for post-conviction relief, assuring the Petitioner that “she would be re-indicted on original charges.” (Id. at 4, 11). According to the petition, counsel did not provide “any further advice as to her options as to what she could pursue for relief in her sentencing.” (Id. at 11).

         On January 4, 2016, the Petitioner filed a motion to correct an illegal sentence, alleging that the second-degree murder sentence is illegal because it is outside the range for a standard offender convicted of a Class A felony. Id. Additionally, the Petitioner alleged that the aggravated robbery sentence was illegal because it is not a violent offense requiring 100% service. Id. The trial court denied the motion, and the Petitioner filed a timely appeal. Id. The Tennessee Court of Criminal Appeals affirmed, finding that the Petitioner failed to state a colorable claim that her sentences are illegal. Id. at *2. The Tennessee Supreme Court denied the application for discretionary review. Id. (Tenn. Aug. 8, 2016).

         On January 12, 2018, the petitioner placed in the prison mail system her pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1 at 13). The Petitioner also has filed a motion to appoint counsel (Doc. No. 3) and a motion for an evidentiary hearing (Doc. No. 7).

         II. Motion to Appoint Counsel

         In support of her request for the appointment of counsel, the Petitioner states that she is unable to afford counsel, her imprisonment “will greatly limit her ability to litigate, ” the issues in her case are complex, she has limited access to the law library and limited knowledge of the law, and counsel “would better enable Petitioner to present evidence and cross examine witnesses” at trial. (Doc. No. 3 at 1).

         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 does not allege that she suffers from any mental defects or physical disabilities that would limit her ability to prosecute his case. The Petitioner has submitted a twenty-four page petition and various motions acting pro se in which she clearly communicates her ideas. Finally, although the Petitioner alleges that her imprisonment “will greatly limit her ability to litigate, ” the issues in her case are complex, she has limited access to the law library and limited knowledge of the law, and counsel “would better enable Petitioner to present evidence and cross examine witnesses” at trial (Doc. No. 3 at 1), at this stage of the proceedings, the Court finds that the Petitioner's circumstances are not exceptional such that the appointment of counsel is necessary at this time. The Petitioner's motion seeking the appointment of counsel (Doc. No. 3), therefore, will be denied. However, should the Petitioner believe that her circumstances have changed such that the appointment of counsel is necessary at a later time, the Court will entertain a second motion for the appointment of counsel.

         III. Standard for Preliminary Review of Section 2254 Cases

         Under Rule 4, Rules - Section 2254 Cases, the court is required to examine § 2254 petitions to ascertain as a preliminary matter whether “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” If, on the face of the petition, it appears that the petitioner is not entitled to habeas corpus relief, then the “the judge must dismiss the petition . . . .” Id.

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified, inter alia, at 28 U.S.C. §§ 2244, et seq.), prisoners have one year within which to file a petition for habeas corpus relief which runs from the latest of four (4) circumstances, one of which is “the date on which the [state court] judgment became final by the conclusion of ...


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