United States District Court, D. Utah
STEPHEN P. MCRAE, Petitioner,
MARK HUBER. et al., Respondents.
Parrish District Judge
MEMORANDUM DECISION & ORDER REQUIRING AMENDED
C. WELLS U.S. Magistrate Judge
matter is referred to the undersigned in accordance with 28
U.S.C. 636(b)(1)(B) by Judge Jill N. Parrish [ECF No. 8]
Before the court are Petitioner's Petition for Writ of
Habeas under 28 U.S.C. Â§ 2241 [ECF No. 6] and Motion to
Appoint Counsel [ECF No. 7]. Having reviewed both the
petition and motion, the court concludes the Motion to
Appoint Counsel is DENIED, without prejudice, and the habeas
petition should be amended within 30 days of this order to
cure the deficiencies addressed below if Petitioner wishes to
further pursue his claims.
lists a respondent other than his custodian.
inappropriately requests relief regarding conditions of
confinement that would be properly brought as civil-rights
claims in a different case.
needs to specify a clear timeline regarding exhaustion of
claim(s) in the appeals and post-conviction processes in the
federal court case.
Rule 8 of the Federal Rules of Civil Procedure an initial
pleading is required to contain "(1) a short and plain
statement of the grounds upon which the court's
jurisdiction depends, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader
seeks." Fed.R.Civ.P. 8(a). The requirements of Rule 8(a)
are intended to guarantee "that [respondents] enjoy fair
notice of what the claims against them are and the grounds
upon which they rest." TV Commc'ns Network, Inc.
v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991),
aff'd, 964 F.2d 1022 (10th Cir. 1992).
litigants are not excused from complying with Rule 8's
minimal pleading requirements. "This is so because a pro
se [litigant] requires no special legal training to recount
the facts surrounding his alleged injury, and he must provide
such facts if the court is to determine whether he makes out
a claim on which relief can be granted." Hall v.
Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991). Moreover,
"it is not the proper function of the Court to assume
the role of advocate for a pro se litigant."
Id. at 1110. Thus, the Court may not "supply
additional facts, [or] construct a legal theory for
[petitioner] that assumes facts that have not been
pleaded." Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989).
should consider the following points before refiling his
petition. First, the revised petition must stand entirely on
its own and shall not refer to, or incorporate by reference,
any portion of the original petition or any other documents
previously filed by Petitioner. See Murray v.
Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment
supersedes original). Second, Petitioner must clearly state
whom his custodian is and name that person (a warden or
ultimate supervisor of an imprisonment facility) as the
respondent. See 28 U.S.C § 2242. Third,
Petitioner may generally not bring civil-rights claims as to
his conditions of confinement in a habeas-corpus petition.
Fourth, any claims about Petitioner's underlying
conviction and/or sentencing should be brought under §
2254; any claims about the execution of Petitioner's
sentence should be brought under § 2241. 28 U.S.C.S.
§§ 2254, 2241 (2018). Fifth, Petitioner should seek
help to prepare initial pleadings from legal resources (e.g.,
contract attorneys) if available where he is held.
FOR APPOINTED COUNSEL
Court now evaluates Petitioner's motion for appointed
counsel. [ECF No. 7]. The Court initially notes that
Petitioner has no constitutional right to appointed pro
bono counsel in a federal habeas corpus case. See
United States v. Lewis, No. 97-3135-SAC,
91-10047-01-SAC, 1998 WL 1054227, at *3 (D. Kan. December 9,
1998). Moreover, because no evidentiary hearing is required
here, Petitioner has no statutory right to counsel.
See Rule 8(c), R. Governing § 2254 Cases in
U.S. Dist. Courts. However, the Court may in its discretion
appoint counsel when "the interests of ...