Matches in SCALES for { <scales/DocketEntry/ilnd;;1:04-cv-06600_de9> ?p ?o ?g. }
Showing items 1 to 3 of
3
with 100 items per page.
- ilnd;;1:04-cv-06600_de9 RegisterActionDate "2005-02-04" @default.
- ilnd;;1:04-cv-06600_de9 RegisterActionDescriptionText "MINUTE entry before Judge Samuel Der-Yeghiayan : This matter is before the court on Edmund Ingram's ("Ingram") request for leave to file his petition for writ of habeas corpus, motion to proceed in forma pauperis ("IFP motion"), and motion for appointment of counsel. For the reasons stated below, we grant Ingram's request for leave to file his petition for writ of habeas corpus. In addition, we deny Ingram's motion to proceed in forma pauperis and motion for appointment of counsel without prejudice. I. Request for Leave to File Petition for Writ of Habeas Corpus On October 28, 2004, we dismissed Ingram's petition for writ of habeas corpus without prejudice for failure to properly exhaust his state court remedies. On November 16, 2004, Ingram submitted a letter to the Clerk of the Court for the Northern District of Illinois, indicating that all appeals pending in the Illinois state courts were concluded and that he now requests to resubmit his petition for writ of habeas corpus. Along with his letter, Ingram attached his instant petition for writ of habeas corpus, an IFP motion, and a motion for appointment of counsel. Inasmuch as Ingram is proceeding pro se, we will construe his letter to the Clerk of the Court which was accompanied with a petition for writ of habeas corpus as Ingram's request for leave to file his petition for writ of habeas corpus. Ingram has indicated that currently there are no appeals pending in the Illinois state courts. Therefore, based on Ingram's representation that he has exhausted his state court remedies, we grant Ingram's request for leave to file his petition for writ of habeas corpus. II. IFP Motion Attached to Ingram's letter to the Clerk of the Court dated November 16, 2004, Ingram submitted an IFP motion. However, Ingram failed to submit page 2 of the three page in forma pauperis application with his IFP motion. Further, Ingram's certified prison trust account attached to his IFP motion is outdated inasmuch as it does not reflect Ingram's financial status for the six months preceding the filing of his IFP motion as required in the in forma pauperis application. Accordingly, Ingram has not submitted sufficient and complete information in order to properly adjudicate his IFP motion. Therefore, we deny Ingram's IFP motion without prejudice. Ingram is granted leave to file an IFP motion on or before to March 4, 2005, or pay the $5.00 filing fee. Ingram is warned that if he does not submit an IFP motion or pay the $5.00 filing fee by March 4, 2005, his petition for writ of habeas corpus will be dismissed for failure to pay the filing fee. III. Motion for Appointment of Counsel A civil litigant does not have a right to appointed counsel. Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997). There is no right to appointed counsel even if the civil litigant has filed a petition for writ of habeas corpus and is seeking to overturn a criminal conviction. Dellenbach v. Hanks, 76 F.3d 820, 823 (7th Cir. 1996). However, a court in its discretion, can appoint counsel for indigents in a civil action pursuant to 28 U.S.C. section 1915(e)(1). The Seventh Circuit has articulated the following non-exclusive list of five factors to consider when deciding whether to appoint counsel: "(1) the merits of the indigent?s claim; (2) the ability of the indigent plaintiff to investigate crucial facts unaided by counsel; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent to present the case; and (5) the complexity of the legal issues raised by the complaint." Jackson v. County of McClean, 953 F.2d 1070, 1072 (7th Cir. 1992)(citing Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981)); see also Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)(stating that the appointment of counsel standard can be distilled to whether there are "'exceptional circumstances' as determined by 'an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.'")(quoting Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991)). The Seventh Circuit has also stated that even before we consider the five factors listed in Jackson, a threshold issue for the court in deciding whether counsel should be appointed is whether an indigent has made a reasonable effort to retain counsel and "was unsuccessful or... was effectively precluded from making such efforts." Jackson v. County of McClean, 953 F.2d 1070, 1073 (7th Cir. 1992). Ingram has a submitted a motion for appointment of counsel. However, Ingram has failed to answer the question in paragraph 2 of his motion for appointment of counsel which explicitly asks him to list his attempts to secure counsel. Accordingly, Ingram has failed to establish that he made a reasonable effort to retain counsel on his own behalf in this case before filing this motion, and there is no evidence that he was precluded from making such an effort. In addition, we note that even if Ingram properly filled out the question in paragraph 2 of his motion for appointment of counsel, his case does not involve the type of complexity that would warrant an appointment of counsel. Further, Ingram's claim does not appear to be meritorious and he should be able to investigate the crucial facts without the aid of counsel. Therefore, we find that appointment of counsel is not appropriate at this juncture and we deny Ingram's motion for appointment of counsel without prejudice. (mw, ) (Entered: 02/04/2005)" @default.
- ilnd;;1:04-cv-06600_de9 AdministrativeID "7" @default.