United States District Court, M.D. Tennessee, Nashville Division
BRIAN LE HURST, No. 473449, Petitioner,
WARDEN JAMES M. HOLLOWAY, Respondent.
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
Le Hurst, an inmate of the DeBerry Special Needs Facility in
Nashville, Tennessee, filed a pro se petition under 28 U.S.C.
§ 2254 for a writ of habeas corpus challenging his 2010
conviction and sentence for first degree murder for which he
currently is serving a term of life imprisonment in the
Tennessee Department of Correction. (Doc. No. 1).
Petitioner has filed a second motion for the appointment of
counsel. (Doc. No. 19). In support of his request for the
appointment of counsel, the Petitioner states that
exceptional circumstances, namely his alleged mental defects
and alleged lack of legal assistance, justify the appointment
of counsel. (Id.)
Respondent opposes the Petitioner's motion (Doc. No. 20)
and filed the affidavit of Christina Gold in support of his
opposition (Id. at Attach. 1). Christina Gold is the
Inmate Jobs Coordinator at the DeBerry Special Needs
Facility. She states that the facility currently has two
legal aide positions and two legal helper positions.
(Id.) The Respondent submits Gold's affidavit to
refute the Petitioner's claim that he does not have
access to legal helpers. After filing his response, the
Respondent subsequently filed a motion for leave to file an
amended affidavit of Christina Gold (Doc. No. 21), stating
that, two days after Gold submitted her affidavit, the
Tennessee Department of Correction notified the
Respondent's counsel that Gold wanted to amend her
affidavit. (Id. at 1). Gold states in her amended
affidavit that, while the DeBerry Special Needs Facility does
have two inmate legal helpers as previously submitted, the
two inmate legal helpers also serve as legal aides.
(Id., Attach. 1). Essentially, Gold states that the
two inmates serve consolidated, dual roles of inmate legal
aides and legal helpers.
should permit the filing of an amended affidavit if the
offering party demonstrates “good cause” for
amendment. See Kipperman v. Onex Corp., No.
1:05-cv-1242, 2006 WL 8421931, at *1 n.1 (N.D.Ga. Sept. 15,
2006). The Court finds that the amended affidavit by Gold was
submitted for the purpose of clarifying Gold's previous
statements concerning how many legal helpers are available at
the Petitioner's facility, and this purpose constitutes
“good cause.” Accordingly, the Respondent's
motion to submit the amended affidavit of Christina Gold
(Doc. No. 21) is hereby GRANTED.
Court will now move to the Petitioner's second motion
seeking the appointment of counsel. 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.
second motion for the appointment of counsel, the Petitioner
states that he “has a documented history of mental
illness that qualifies as exceptional circumstances”
warranting the appointment of counsel to assist the
Petitioner in responding to the response to his habeas corpus
petition. (Doc. No. 19 at 1). Specifically, the Petitioner
alleges that the suffers from adjustment disorder, manic
depression, and anxiety disorder “which significantly
affects his ability to properly assist in his own
defense.” (Id.) The Petitioner asserts that,
due to his “mental defect, ” in 2013 he
improperly filed his pro se petition for post-conviction
relief. (Id. at 2).
Petitioner further alleges that, when he prepared the instant
petition, he was assisted by inmate legal helpers but he no
longer has access to inmate legal helpers. (Id. at
2). He states that he needs the assistance of a legal helper
to prepare his reply to the Respondent's response to the
Petitioner's habeas corpus petition. (Id. at
2-3). The Petitioner cites to two memoranda from the
Tennessee Department of Correction that differentiate between
legal helpers and legal aides, with legal aides being
“limited in the assistance they provide inmates”
and legal helpers being able to “assist inmates with
the shephardizing of case law, interpret[ing] and
explain[ing] legal theory and strategy, and assist[ing] in
the preparation of legal briefs and petitions.”
(Id. at 3, 7, 8). According to the Petitioner, these
circumstances also warrant the appointment of counsel.
considering the Lavado factors, with regard to the
type of case and the nature of the factual and legal issues
involved, the Petitioner's case is a Section 2254
petition for a writ of habeas corpus that collaterally
challenges his conviction for first-degree murder. The
petition alleges several claims, including sufficiency of the
evidence and ineffective assistance of counsel. According to
the Respondent, some of these claims are unexhausted. (Doc.
No. 20 at 2). The Respondent has submitted the
Petitioner's state court record (Doc. No. 14), and it is
not atypical in its size. The factual and legal issues
involved are claims that are commonly alleged in other habeas
petitions that pro se litigants routinely litigate. See
Flores v. Holloway, No. 3:17-cv-246, 2017 WL 2812908, at
*2 (M.D. Tenn. June 29, 2017). Consequently, these
Lavado factors weigh in favor of denial of the
Petitioner's motion for the appointment of counsel.
regard to the Petitioner's ability to represent himself
in these proceedings, while the Petitioner alleges that his
mental issues constitute exceptional circumstances, the
Petitioner fails to show how his mental issues have impeded
his ability to prosecute this case. The Petitioner submitted
a petition that totals over 100 pages in length and includes
17 exhibits. (See Doc. No. 1). He has also filed a
letter informing the court of his intent to invoke the prison
mailbox rule (Doc. No. 2), a motion for the appointment of
counsel in which he did not argue that he suffers from any
mental defects that affect his ability to understand these
proceedings and represent his interests in this case (Doc.
No. 5), and a notice of intent to file a reply (Doc. No. 16).
(See Doc. No. 16, 19). These filings suggest that
the Petitioner is well equipped to represent himself in this
case. See Flores, 2017 WL 2812908 at *2 (denying
motion for the appointment of counsel when petitioner
submitted a “lengthy petition” demonstrating his
ability to litigate his case).
fair, the Petitioner asserts that he had the assistance of a
legal helper in preparing his petition and he no longer has
assistance to a legal helper because the facility only
provides legal aides as of September 1, 2017. (Doc. No. 19 at
8). True, each of the Petitioner's previous filings
occurred before September 1, 2017. According to the
Petitioner, legal aides are “little more than
librarians for legal materials.” (Id. at 3).
Ho Inmate Jobs Coordinator Christina Gold, the P serve as
legal helpers. (Doc. No. 21, Attac positions that assist
inmates in conducting le aides are paid positions that
operate the law library. (Id.)
fact, in reviewing the TDOC m designated inmate law library
aides (Carlos legal helper previously. (See Doc. No.
19 a Carlos Hardy and Stanley Blackwood serve b No. 21,
Attach. 1). Thus, contrary to the P inmate legal assistance
from Hardy and Blackwood and to the law library. This Lavado
factors also weighs against the appointment of counsel.
the Petitioner's second motion seeking the appointment of
counsel (Doc. ...