United States District Court, S.D. Texas, Houston Division
ORDER
ALFRED
H. BENNETT UNITED STATES DISTRICT JUDGE
Clair
Audrey Wolf, a Texas state inmate, filed this petition under
28 U.S.C. § 2254, seeking a federal writ of habeas
corpus to challenge a state-court conviction for solicitation
of capital murder. Wolf has filed several motions, including
a motion for appointment of counsel (Docket Entry No. 25); a
motion to strike the respondent's motion for summary
judgment (Docket Entry No. 26); a second motion for extension
of time (Docket Entry No. 27); and a motion for discovery
(Docket Entry No. 28). The Court has carefully considered all
of the motions and concludes as follows.
Wolf
requests the appointment of counsel. There is no
constitutional right to counsel on federal habeas review.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
("We have never held that prisoners have a
constitutional right to counsel when mounting collateral
attacks upon their convictions") (citation omitted).
Although Wolf raises several issues in his petition, none of
them are completely novel or complex. He does not show that
the "interests of justice" require the appointment
of counsel. See Schwander v. Blackburn, 750 F.2d
494, 502-03 (5th Cir. 198:5). Accordingly, his motion for
appointment of counsel (Docket Entry No. 25) will be denied
at this time.
Wolf
also seeks discovery in order to respond to the motion for
summary judgment. Discovery is very limited in federal habeas
proceedings challenging state court judgments. The Supreme
Court has clarified that "review under § 2254(d)(1)
is limited to the record that was before the state court that
adjudicated the claim on the merits." Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). Likewise,
"Rule 6 of the Rules Governing § 2254 cases permits
discovery only if and only to i:he extent that the district
court finds good cause." Murphy v. Johnson, 205
F.3d 809, 8 14 (5th Cir. 2000); see also Hill v.
Johnson, 210 F.3d 481, 487 (5th Cir. 2000).
Wolf
contends that he needs discovery because the state habeas
court's findings of fact and conclusions of law were not
supported by the affidavit of James Sidney Crowley, his trial
counsel. Wolf alleges that Crowley's affidavit was never
forwarded to the Texas Court of Criminal Appeals, and,
therefore, that the habeas court's findings and
conclusions lacked factual support.
Publicly
available records reflect that on December 10, 2018, a
supplemental record was submitted to the Texas Court of
Criminal Appeals in his state habeas case.[1] The supplemental
habeas corpus record filed by the respondent in this federal
habeas proceeding shows that the state trial court's
October 17, 2018 Order of Findings of Fact and Conclusions of
Law in cause number 1354683-A, along with Crowley's
September 24, 2018 affidavit, were forwarded to the Texas
Court of Criminal Appeals on December 10, 2018.[2] Wolfs contentions
are belied by the record. The Court finds that he does not
demonstrate that good cause exists for further discovery in
his federal habeas case. Therefore, Wolfs motion for
discovery (Docket Entry No. 28) will be denied.
Wolf
also argues that the respondent's motion for summary
judgment does not suffice as an answer to his habeas petition
and requests that the Court strike the motion. Wolf is
incorrect. See Randle v. Scott, 43 F.2d 221, 226
& n.2 (5th Cir. 1995) (rejecting habeas petitioner's
claim that a summary judgment motion is inappropriate in a
habeas proceeding and noting that the motion contai led
responses to the allegations as required by Rule 5). Here,
the respondent's motion for summary judgment contains the
responses required by Rule 5 of the Rules Governing Section
2254 Cases in the United States District Courts, as the
respondent was directed to do in the Court's February 26,
2019 Order to Answer. See Docket Entry No. 10 at
¶¶ 2-4, 6 ("Whether the respondent elects to
submit an answer or a dispositive motion (i.e., a motion
to dismiss or for summary judgment), Wolf shall file any
reply within thirty (30) dsiys of the date reflected on the
certificate of service.") (first emphasis added). Wolfs
molion to strike (Docket Entry No. 26) will be denied.
Finally,
Wolf has filed a second motion for an extension of time to
respond to the motion for summary judgment. He requests
several months' extension, up to and including February
3, 2020, to respond. (Docket Entry No. 27). The Court has
considered Wolfs motion and concludes that it should be
granted in part and denied in part. Wolf shall have until
December 20, 2019, to file a response. Wolf is advised that
further extensions will not be granted unless good cause is
shown.
In
conclusion, the Court ORDERS as fallows:
1. Petitioner's motion for appointment of counsel (Docket
Entry No. 25), motion to strike (Docket Entry No. 26), and
motion for discovery (Docket Entry No. 28) are
DENIED.
2. Petitioner's second motion for an extension of time
(Docket Entry No. 27) is GRANTED in part,
and DENIED in part. Petitioner's
response shall be due no later than December 20,
2019. No further extensions will be granted unless good
cause is shown.
The
Clerk shall enter this Order and provide a correct copy to
the parties.
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