United States District Court, D. Minnesota
Jeremia Joseph Loper, (pro se Petitioner); and
Michael J. Lieberg, Assistant County Attorney, Stearns County
Attorney's Office, (for Respondent).
N. LEUNG UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on two motions filed by pro se
Petitioner Jeremia Joseph Loper: “Motion for
Appointment of Counsel” (ECF No. 16) and “Motion
for Filing Extension” (ECF No. 18). Collectively,
Petitioner's motions express concern over his ability to
comply with the deadline for filing a reply in this matter
based on access to his property, including his legal
materials, which is in the possession of his state department
of corrections agent.
September 7, 2018, Petitioner filed a Petition under 28
U.S.C. § 2254 for a writ of habeas corpus. (ECF No. 1.)
Petitioner requested, and the Court granted, a motion for an
extension of time to file a memorandum in support of his
Petition. (ECF Nos. 2, 5.) On November 1, 2018, the Court
issued an Order directing Respondent to file an answer to the
Petition, “showing cause why the writ should not be
granted.” (ECF No. 11 at 1.) Respondent's answer
was due within 30 days of the Court's Order. (ECF No. 11
at 1.) If Petitioner elected to file a reply, such reply was
due within 30 days of Respondent's answer. (ECF No. 11 at
the Petition was being briefed, Petitioner was transferred
from one correctional facility to another. (See
Mandamus Mot. at 1; ECF No. 15.) As part of the transfer
process, Petitioner's state department of corrections
agent took possession of his property. (Mandamus Mot. at 1.)
This included Petitioner's “legal work and . . .
contacts” along with “[his] evidence in regards
to [his] claims.” (Mandamus Mot. at 1.) Petitioner is
concerned that he will not get his legal materials back and
filed a motion requesting that the Court “compel the
return of [his] property including his legal files,
unmolested to wherever he has been transferred.” (Mot.
Court directed Respondent to respond to Petitioner's
request that the Court compel the return of his property.
(ECF No. 17.) In a letter, Respondent acknowledged that
Petitioner's property is in the possession of his state
department of corrections agent. (Ltr. at 1, ECF No. 19.)
Respondent states that both Petitioner's state department
of corrections agent and his case worker at the facility
where he is currently incarcerated “have informed
[P]etitioner how to get his property returned to him, ”
but Petitioner has “failed to take the necessary steps
for the return of his property.” (Ltr. at 1.)
Respondent further states that he has no objection to the
Court granting Petitioner additional time to file his reply.
As of January 29, 2019, Petitioner's property remains
with state department of corrections agents. (Traverse at 2,
ECF No. 20.)
civil cases, there is no constitutional or statutory right to
appointed counsel.” Ward v. Smith, 721 F.3d
940, 942 (8th Cir. 2013); accord Phillips v. Jasper Cty.
Jail, 437 F.3d 791, 794 (8th Cir. 2006) (same). This
applies with equal force to habeas proceedings. Knutson
v. McNurlin, No. 15-cv-2807 (DSD/BRT), 2015 WL 9224180,
at *2 (D. Minn. Nov. 23, 2015) (citing McCall v.
Benson, 114 F.3d 754, 756 (8th Cir. 1997)), adopting
report and recommendation, 2015 WL 9165885 (D. Minn.
Dec. 16, 2015). Whether to appoint counsel is left to the
discretion of the Court. McCall, 114 F.3d at 756;
see also, e.g., Chambers v. Pennycook, 641
F.3d 898, 909 (8th Cir. 2011); Phillips, 437 F.3d at
Court concludes that appointment of counsel is not warranted
at this time. Petitioner's filings to date demonstrate
his ability to articulate his position to the Court and a
basic understanding of legal procedure, including filing
motions as a means of seeking relief from the Court.
Petitioner's “Traverse” also includes
citations to many legal authorities. Petitioner contends that
he “has no other means of access to the courts”
other than the appointment of counsel based on his
incarceration. (ECF No. 16 at 1.) The present motions and the
most recently filed “Traverse” demonstrate that
Petitioner's access is not impeded. Further, the factual
and legal issues in this habeas proceeding do not appear any
more complex than other habeas petitions routinely brought
before this Court.
Court appreciates that Petitioner's current incarceration
presents certain challenges to self-representation, including
the need to follow certain procedures for the return of his
property and the overall availability of legal resources.
(See, e.g., ECF No. 18 at 1.) Petitioner's state
department of corrections agent and current case worker have
told him what needs to be done in order for his property to
be returned. The Court recognizes such processes take time.
Petitioner has also had difficulty obtaining access to the
law library, which has limited his “ability to research
and prepare [his] reply.” (ECF No. 18 at 1.)
Accordingly, the Court finds good cause to grant
Petitioner's request for an extension of time to file his
the request for an extension was pending with the Court,
Petitioner recently filed a reply, the
“Traverse.” In his “Traverse, ”
Petitioner indicates that he still does not have access to
his legal materials. (Traverse at 2.) Given that the Court
finds good cause to grant the requested extension, Petitioner
may file a supplemental reply to his “Traverse”
on or before March 15, 2019.