# Coleman v. McConahay

> District Court, N.D. Ohio · September 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10371250

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN C. COLEMAN, CASE NO. 5:21-CV-01985

Petitioner, DISTRICT JUDGE CHARLES ESQUE FLEMING

vs. MAGISTRATE JUDGE AMANDA M. KNAPP

WARDEN TIM MCCONAHAY,
ORDER
Respondent.

I. INTRODUCTION
Petitioner John C. Coleman (“Petitioner”) filed his Petition for Habeas Corpus pursuant
to 28 U.S.C. § 2254 (“Petition”) pro se on September 15, 2021.1 (ECF Doc. 1.) He
supplemented his Petition on October 22, 2021 with a copy of the Ohio Court of Appeals’ May
6, 2020 decision affirming his convictions on two counts of burglary. (ECF Doc. 3.) This Order
addresses the following motions and related filings:
• Petitioner’s Motion for Discovery on Behalf of Petitioner and Motion for
Evidentiary Hearing (ECF Doc. 18);

• Petitioner’s Motion to Strike (ECF Doc. 23);

• Petitioner’s Amended Claims (Actual Innocence Notice) (ECF Doc. 24);

1 “Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison officials
for filing in the federal courts.” Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S.
266, 273 (1988)). The Petition was docketed on October 20, 2021. (ECF Doc. 1.)
• Petitioner’s Emergency Motion to Expand the Record (ECF Doc. 25);

• Petitioner’s Motion to Strike (ECF Doc. 29);

• Petitioner’s Motion to Strike Doc #27, with Motion to Take Judicial Notice of
Amended Claims and Vacate Magistrate (ECF Doc. 32);

• Petitioner’s Reply to Respondent Doc #28 with Motion to Apply Mailbox Rule
(ECF Doc. 34);

• Petitioner’s Motion for Definite Statement from Respondent (ECF Doc. 36);

• Petitioner’s Motion to Expanding the Record (ECF Doc. 38);

• Petitioner’s Notice of Abuse of Taking of Legal Mail (ECF Doc. 39);

• Petitioner’s Motion for Issuance of Subpoenas to Meet Actual Innocence (Expand
Record Demand) (ECF Doc. 42);

• Petitioner’s Motion to Strike Transcripts (ECF Doc. 45);

• Petitioner’s Emergency Request for Appointment of Counsel (ECF Doc. 46);

• Petitioner’s Emergency Motion for Case Docket with Motion to Provide
Clarification on Coleman’s Definite Statement Request (ECF Doc. 47);

• Petitioner’s Motion for Issuance of Subpoenas to Meet Actual Innocence Support
(Expand Record Request) (ECF Doc. 51);

• Petitioner’s Motion for Issuance of Subpoenas Transcripts (Expand Record
Request) (ECF Doc. 52); and

• Petitioner’s Motion for Subpoena the Entire Surveillance Video in Count One
Burglary in Support of Actual Innocence Claim (Expand Record Request) (ECF
Doc. 56).

The Court’s analysis and disposition of the above matters is set forth below.
II. ANALYSIS
A. Petitioner’s Amended Petition and Motions to Strike Return of Writ, Apply
Mailbox Rule, and Vacate Magistrate Judge Assignment (ECF Docs. 23, 24, 32, 34.)

Although filed separately, the Court addresses Petitioner’s Amended Claims (ECF Doc.
24), Motion to Strike (ECF Doc. 23), Motion to Strike Doc #27, with Motion to Take Judicial
Notice of Amended Claims and Vacate Magistrate (ECF Doc. 32), and Motion to Apply Mailbox
Rule (ECF Doc. 34) together due to the interrelatedness of the arguments presented therein.
In March 2022, Petitioner filed a Motion to Strike, seeking to strike Respondent’s
February 24, 2022 Return of Writ. (ECF Doc. 23.) In support, he asserted that Respondent had
not served him with the Return of Writ, and that he had only learned of the filing by calling the
Clerk’s office. (Id. at p. 1.) The certificate of service date on the motion was March 2, 2022, but
it was docketed on March 10, 2022. (Id. at p. 2.) Respondent opposed the Motion, arguing that
Respondent “served the Answer/Return of Writ, Exhibits, and Transcripts on Coleman on
February 24, 2022 as stated in the Warden’s certificate of service.” (ECF Doc. 27 p. 1.)
Respondent further noted that he re-served Petitioner with the filings on March 17, 2022, along
with his brief in opposition to the motion. (Id.)
Petitioner later filed a document captioned “Petitioner’s Amended Claims,” which
appears to set forth seven grounds for relief in connection with the pending habeas petition.
(ECF Doc. 24 (“Amended Petition”).) The Petition itself sets forth only five grounds for relief.

(ECF Doc. 1.) The Amended Petition contains a certificate of service dated February 21, 2022,
along with a hand-written note on the first page stating: “MAILBOX RULE 2•21•22,” but was
docketed on March 14, 2022. (ECF Doc. 24 pp. 1, 3.) The certificate of service states that a
“copy of [the] amendment” was mailed to Respondent on February 21, 2022. (Id. at p. 3.)
Respondent filed an opposition to the Amended Petition on March 24, 2022, noting that
Respondent had filed his Return of Writ on February 24, 2022, and arguing that Petitioner could
not amend his Petition without seeking leave of court. (ECF Doc. 28.) Respondent also argued
that the Court should not grant Petitioner leave to amend because “there was an undue delay in

raising the claims, amendment would be futile, and the Warden would be unduly prejudiced if
Coleman is allowed to amend his petition.” (ECF Doc. 28.)
In reply to Respondent’s opposition brief, Petitioner requested that the Court apply the
mailbox rule based on the certificate of service date on each of his filings, including his
Amended Petition. (ECF Doc. 34.) He argued “the record will confirm that Coleman’s Doc. No
24 [Petitioner’s Amended Claims] was filed after he requested to strike respondent answer /
return of writ for lack of service” if the mailbox rule is applied. (Id.at p. 1.) He also asserted
that Respondent would not be prejudiced if he were allowed to amend his Petition. (Id. at p. 2.)
This reply brief was docketed on April 11, 2022, with a certificate of service dated March 29,
2022. (Id.)

Petitioner also filed a Motion to Strike Doc #27, with Motion to Take Judicial Notice of
Amended Claims and Vacate Magistrate (Actual Innocence Notice), which was docketed on
April 4, 2022. (ECF Doc. 32.) The certificate of service is dated March 26, 2022 and a hand-
written note on the first page states: “MAILBOX RULE.” (Id. at pp. 1, 3.) In this motion,
Petitioner requested that Respondent’s opposition to his Motion to Strike Return of Writ (ECF
Doc. 27) be stricken because the Respondent attempted to re-serve him with the Answer / Return
of Writ without first seeking leave of Court, and asserted that no Exhibits or Transcripts
accompanied the newly served Return of Writ. (Id. at p. 2.) He also requested that the Court
apply the mailbox rule to all filings, take judicial notice of his amended claims, and vacate the
magistrate judge assignment in the case because he alleges actual innocence. (Id.)
Respondent filed an opposition to this motion on April 6, 2022, arguing Respondent did
not need leave of court to re-serve courtesy copies of filings that had been previously served.

(ECF Doc. 33.) Respondent also argued that it would not be appropriate or warranted for the
Court to take judicial notice of disputed claims or claims that are not sufficiently plead. (Id.)
“Amendment of a petition for habeas corpus is governed by the ‘rules of procedure
applicable to civil actions.’” Hodges v. Rose, 570 F.2d 643, 649 (6th Cir. 1978) (citing 28 U.S.C.
§ 2242); see also Rules Governing Habeas Corpus Cases Under Section 2254, Rule 12 (stating
Federal Rules of Civil Procedure may be applied in a habeas proceeding to the extent not
inconsistent with statutory provisions or the Rules Governing Habeas Cases Under 2254).
Respondent argued that leave is required under Federal Rule of Civil Procedure 15
because Respondent’s Return of Writ is a responsive pleading and was filed before the Amended
Petition. (ECF Doc. 28 p. 1.) Rule 15 provides in pertinent part:

(1) A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.

Fed R. Civ. P. 15(a)(1)(A)-(B) (emphasis added). As explained in the advisory committee’s
notes, Rule 15 was most recently amended “to make three changes in the time allowed to make
one amendment as a matter of course.” See Fed. R. Civ. P. 15(a)(1) advisory committee’s note
to 2009 amendment. “[T]he right to amend once as a matter of course is no longer terminated by
service of a responsive pleading . . . and the amended rule permits one amendment as a matter of
course in response to a responsive pleading.” Id.
Respondent filed his Return of Writ on February 24, 2022. (ECF Doc. 19.) Petitioner
therefore had 21 days – or until March 17, 2022 – to file an amended petition without needing to

seek Respondent’s consent or leave of court under Fed. R. Civ. P. 15(a)(2). Petitioner’s
Amended Petition was docketed on March 14, 2022, making it timely under Fed. R. Civ. P.
15(a)(1)(B) regardless of whether the mailbox rule is applied to the filing date.
While the Amended Petition was timely filed, that filing presently lacks the specificity
required by Rule 2 of the Rules Governing Habeas Corpus Cases Under Section 2254. In
particular, the Amended Petition lacks the required statement of “facts supporting each ground
for relief.” See Rules Governing Habeas Corpus Cases Under Section 2254, Rule 2(c).
Considering Petitioner’s pro se status, the Court grants Petitioner thirty (30) days from the date
of this Order to complete and submit an AO Form 241 setting forth each of the seven grounds for
relief identified in his Amended Petition (ECF Doc. 24 pp. 1-2), which must include a statement

of facts in support of each of the seven grounds for relief. In preparing this filing, Petitioner is
reminded that this Court will not “abrogate basic pleading essentials in pro se suits,” even as it
continues to hold “pro se complaints . . . to a less stringent standard than formal pleadings
drafted by lawyers.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Thus, the Court may
summarily deny relief as to one or more grounds for relief if Petitioner fails to sufficiently plead
all seven amended grounds for relief as required by this Order and Habeas Rule 2.
Having found that Petitioner timely sought to amend his Petition, the Court DENIES as
MOOT Petitioner’s Motion to Strike Respondent’s Return of Writ (ECF Doc. 23). Once
Petitioner has filed his new Amended Petition as directed above, Respondent will have an
opportunity to file an amended Answer / Return of Writ in response to Petitioner’s Amended
Pleading. The Court also DENIES as MOOT the Motion to Apply Mailbox Rule (ECF Doc. 34)
because the Amended Petition was timely filed even without application of the mailbox rule.2
The Court DENIES Petitioner’s Motion to Strike Doc #27, with Motion to Take Judicial

Notice of Amended Claims and Vacate Magistrate (ECF Doc. 32) for the following reasons.
Petitioner’s request to strike Doc #27 (the opposition to his Motion to Strike Return of Writ) is
MOOT. Additionally, while the Court finds Petitioner timely filed his Amended Petition, the
Court does not find that Petitioner has properly supported his request that the Court take judicial
notice of those claims. Finally, this case was referred to the undersigned Magistrate Judge in
accordance with the Northern District of Ohio Local Civil Rules which provide:
The Clerk shall refer all cases in the following categories to a Magistrate Judge for
a Report and Recommendation as provided in Local Rule 72.1 . . . Pro se petitions
for habeas corpus filed under 28 U.S.C. § 2254 provided such petition has first been
reviewed by the Court pursuant to 28 U.S.C. § 1915(d) and Rule 4 of the Rules
Governing § 2254 Cases and a decision has been made to require a response to the
petition.

L.R. 72.2(b)(2) (emphasis in original). Accordingly, Petitioner’s request to vacate the magistrate
is without merit.
B. Motions for Definite Statement from Respondent (ECF Doc. 36) and to Strike
Transcripts (ECF Doc. 45), and Emergency Motion for Case Docket with Motion to
Provide Clarification on Coleman’s Definite Statement Request (ECF Doc. 47)

Although filed separately, the Court addresses Petitioner’s Motion for Definite Statement
from Respondent (ECF Doc. 36), Motion to Strike Transcripts (ECF Doc. 45), and Emergency

2 “Under the mailbox rule, a habeas petition is deemed filed when the prisoner gives the petition to prison
officials for filing in the federal courts.” Cook, 295 F.3d at 521. While the Sixth Circuit has found that the mailbox
rule may be extended to other filings where a petitioner “deliver[ed] them to prison mail room personnel in a proper
manner before the … deadline,” Walker v. City of Lakewood, 35 F.3d 567 (6th Cir. 1994), it is not clear – and this
Court need not consider – whether Petitioner took the steps necessary to warrant the application of the mailbox rule
in this case.
Motion for Case Docket with Motion to Provide Clarification on Coleman’s Definite Statement
Request (ECF Doc. 47) together due to the interrelatedness of the arguments presented therein.
In a Motion for Definite Statement from Respondent that was docketed on April 12,
2022, Petitioner argued he “needs the ‘facts’ supporting his [burglary] conviction[s] to pursue his

claim.” (ECF Doc. 36.) Respondent filed his brief in opposition on April 15, 2022, arguing that
the Return of Writ was not “so vague or ambiguous” that Petitioner could not “reasonably
prepare a response.” (ECF Doc. 37 (citing Fed. R. Civ. P. 12(e)).) Respondent also noted that he
included a copy of the indictment and jury trial transcripts with his Return of Writ, in compliance
with Habeas Rule 5. (Id.) In his reply brief, docketed on May 31, 2022, Petitioner asserted that
he “cannot respond to uncertified forged transcripts,” and argued that the court reporter’s
signature on the transcripts he received from his appellate counsel are “totally different” from the
signatures on “transcripts attached to the Respondent’s Answer.” (ECF Doc. 49.)
Petitioner separately filed a Motion to Strike Transcripts, which was docketed on May
17, 2022, also seeking an order striking the transcripts filed by the Respondent as part of the state

court record. (ECF Doc. 45.) In this Motion, Petitioner asserted that his prior appellate attorney
provided him with trial transcripts that did not contain the court reporter’s signature. (Id.) He
also asserted that there are differences between the court reporter’s signature on copies of
transcripts he received from his prior appellate counsel, transcripts he received from the
Respondent, and a letter he received from the court reporter. (Id.) He contends that the alleged
differences show “corruption and the Court should strike the transcripts.” (Id.)
Petitioner also filed an Emergency Motion for Case Docket with Motion to Provide
Clarification on Coleman’s Definite Statement Request, which was docketed on May 24, 2022.
(ECF Doc. 47.) In that Motion, he requested a copy of the docket in this case. (Id.) He also
clarified that “when [he] filed his motion for an indefinite [sic] statement his request was for the
Court to issue a statement pertaining to his pending objections and strike request.” (Id.)
The Court DENIES as MOOT Petitioner’s request for a definite statement from
Respondent (ECF Doc. 36). As discussed above, Respondent will file an amended Answer /

Return of Writ following Petitioner’s filing of a new Amended Petition in the manner directed by
this Order. Petitioner’s request for a definite statement with respect to the present Return of Writ
is therefore moot.
The Court DENIES Petitioner’s request to strike the transcripts (ECF Doc. 45). As
Petitioner acknowledges, the unsigned copies of transcripts that Petitioner references when
seeking to strike the transcripts were provided to him by his prior appellate attorney. (ECF Doc.
45 p. 1, ECF Doc. 45-1 p. 1.) He has not alleged, and the record does not reflect, that the
transcripts filed by the Respondent with the Return of Writ are unsigned or uncertified. (ECF
Doc. 19 p. 4, ECF Doc. 19-2.) Petitioner also has not alleged or provided information to suggest
that the transcripts provided by the Respondent do not accurately recount the state trial court

proceedings. Furthermore, the undersigned notes that this Court’s “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, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011). Thus,
any questions regarding the accuracy of the trial court transcripts should have been raised by
Petitioner in the state court proceedings. See e.g., Parrish v. Wainwright, No. 3:16-CV-486,
2017 WL 3887965, at *1 (S.D. Ohio Sept. 5, 2017) (explaining that the court’s review was
“limited to the state court record and . . . the proper time for Parrish to raise his concerns over the
transcript’s completeness and accuracy was on appeal or in a motion for post-conviction relief”).
The Court also DENIES Petitioner’s Emergency Motion for Case Docket with Motion to
Provide Clarification on Coleman’s Definite Statement Request. (ECF Doc. 47.) In that motion,
Petitioner indicated he was requesting that the Court “issue a statement pertaining to his pending
objections and strike request,” and also send him a copy of the docket. (ECF Doc. 47.) With

respect to his request that the Court issue a statement on pending motions, the Court observes
that “[a] district court has the inherent power to control its own docket.” Jack v. Allied Sys. Ltd.,
No. 3:05-CV-125, 2009 WL 10679557, at *3 (S.D. Ohio Sept. 21, 2009) (citing Landis v. N. Am.
Co., 299 U.S. 248, 254, 57 S. Ct. 163, 81 L. Ed. 153 (1936); Gould v. Control Laser Corp., 705
F.2d 1340, 1341 (Fed. Cir. 1983)). Indeed, “[h]ow to best manage the Court’s docket ‘calls for
the exercise of judgment, which must weigh competing interests and maintain an even balance.’”
Jack, 2009 WL 10679557, at *3 (quoting Landis, 299 U.S. at 254-55). Because it is within this
Court’s discretion to manage its own docket, the Court DENIES Petitioner’s request that the
Court “issue a statement pertaining to his pending objections and strike request” (ECF Doc. 47).
The Court also notes that Petitioner’s pending motions are resolved by the present order, with the

exception of any relating to Petitioner’s objections to prior orders by the undersigned.
Petitioner’s request for a copy of the court docket (ECF Doc. 47) is also DENIED. As
this Court explained in its February 17, 2022 Order (ECF Doc. 17), the Court “is not required to
fund plaintiff's litigation efforts and plaintiff has no constitutional right to free copies of
documents.” Harris v. Erdos, No. 1:20-CV-120, 2021 WL 1839739, at *2 (S.D. Ohio May 7,
2021) (citing Bell-Bey, v. Toombs, No. 93-2405, 1994 WL 105900 (6th Cir. Mar. 28, 1994) (“the
law is settled that an inmate does not enjoy a federal constitutional right to unlimited free
photocopying services”)), report and recommendation adopted, No. 1:20-CV-120, 2021 WL
4225125 (S.D. Ohio Sept. 16, 2021). While the Court did direct the Clerk “in [that] one instance
. . . to send Petitioner a copy of the docket in this case and the Petition with attachments,” the
Court also reminded Petitioner if he wanted copies of court records in the future, he could
request copies and pay the per page fee associated with the request which is currently $.50 per
page when copied or printed by the Clerk’s office. (ECF Doc. 17 p. 10.) The Court accordingly

denies Petitioner’s request for a copy of the court docket, and again instructs Petitioner that he
may request copies of court records in the same manner previously described by this Court.
C. Motions for Discovery, Expansion of Record, and an Evidentiary Hearing (ECF
Docs. 18, 25, 29, 38, 42, 51, 52, 56)

Also pending before the Court are various motions filed by Petitioner seeking discovery,
expansion of the record, and an evidentiary hearing. See Motion for Discovery on Behalf of
Petitioner and Motion for Evidentiary Hearing (ECF Doc. 18); Emergency Motion to Expand the
Record (ECF Doc. 25); Motion to Strike [Respondent’s Response in Opposition to Petitioner’s
Motion for Discovery and Evidentiary Hearing (ECF Doc. 21)] (ECF Doc. 29); Motion to
Expanding the Record (ECF Doc. 38); Motion for Issuance of Subpoenas to Meet Actual
Innocence (Expand Record Demand) (ECF Doc. 42), Motion for Issuance of Subpoenas to Meet
Actual Innocence Support (Expand Record Request) (ECF Doc. 51), Motion for Issuance of
Subpoenas Transcripts (Expand Record Request) (ECF Doc. 52), and Motion for Subpoena the
Entire Surveillance Video in Count One Burglary in Support of Actual Innocence Claim (Expand
Record Request) (ECF Doc. 56).
In these motions, Petitioner seeks broad discovery and expansion of the record, including
requests for witness names and statements, grand jury testimony and minutes, trial court hearing
transcripts, results of scientific tests, videotapes and photographs, copies of search and seizure
warrants and affidavits in support, as well as an evidentiary hearing. (ECF Docs. 18, 25, 38, 42,
51, 52, 56.) He contends discovery and expansion of the record is necessary to support his
habeas claims and to demonstrate his actual innocence. (Id.) Respondent opposes Petitioner’s
requests for discovery, expansion of the record, and evidentiary hearing. (ECF Docs. 21, 30, 53,
54, 57.)
As discussed above, “review under § 2254(d)(1) is limited to the record that was before

the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181.
Accordingly, “[a] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled
to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct.
1793, 1796–97, 138 L. Ed. 2d 97 (1997).
Instead, pursuant to Habeas Rule 6, discovery under the Federal Civil Rules is
discretionary with the Court and may be allowed only upon a showing of “good cause.” Id.;
Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001) (“A district court has discretion to grant
discovery in a habeas case upon a fact specific showing of good cause under Rule 6.”) (citing
Bracy, 520 U.S. 899). Notably, “Rule 6 does not sanction fishing expeditions based on a
petitioner’s conclusory allegations.” Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004)

(internal quotations and citations omitted). Instead, a petitioner must demonstrate good cause
through “specific allegations of fact.” Id. “The burden of demonstrating the materiality of
information requested is on the moving party.” Stanford, 266 F.3d at 460.
Habeas Rule 7 also gives the Court discretion over whether to “direct the parties to
expand the record by submitting additional materials relating to the petition.” See Rule 7 of the
Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254 (“. . . the judge may direct the parties to
expand the record . . .) (emphasis added); see also West v. Bell, 550 F.3d 542, 551 (6th Cir.
2008) (“The decision of whether to expand the record, however, is within the sound discretion of
the district court.”).
As to evidentiary hearings, while they are not precluded in federal habeas proceedings,
they are permitted only in limited circumstances. As set forth in 28 U.S.C. § 2254(e)(2):
(2) If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through
the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.

28 U.S.C.A. § 2254(e)(2) (emphasis added); see also Rule 8 of the Rules Governing Habeas
Corpus Cases Under Section 2254 (addressing evidentiary hearings). Even where a petitioner “is
not disqualified from receiving an evidentiary hearing under § 2254(e)(2),” the Sixth Circuit has
recognized that mere fact “does not entitle him to one.” Bowling v. Parker, 344 F.3d 487, 512
(6th Cir. 2003). Indeed, “[e]ven in a death penalty case,” the Sixth Circuit has recognized that
“‘bald assertions and conclusory allegations do not provide sufficient ground to warrant
requiring the state to respond to discovery or to require an evidentiary hearing.’” Id. (quoting
Stanford, 266 F.3d at 460) (alternations in original).
Petitioner has already been instructed to file a revised Amended Petition, in the format
and with the specific supporting information described above. Once that Amended Petition has
been filed, Respondent will have an opportunity to file an amended Answer / Return of Writ.
With those specific pleadings and supporting allegations still outstanding and awaiting
submission, this Court cannot meaningfully assess at this time whether Petitioner can meet his
burden to establish good cause to permit discovery, appropriate grounds to expand the record, or
a sufficient basis to order an evidentiary hearing. Accordingly, the Court DENIES WITHOUT
PREJUDICE Petitioner’s requests for discovery, expansion of the record, and an evidentiary
hearing (ECF Doc. 18, 25, 38, 42, 51, 52, 56), except that Petitioner’s request for copies of the

transcripts from trial court proceedings on February 7, 2018 and August 20, 2018 (ECF Doc. 52
p. 3) is DENIED as MOOT because the Respondent filed copies of those transcripts (ECF Doc.
53-1 pp. 11-35). The Court also DENIES as MOOT Petitioner’s Motion to Strike Respondent’s
Response in Opposition to Petitioner’s Motion for Discovery and Evidentiary Hearing (ECF
Doc. 29).
D. Emergency Request for Appointment of Counsel (ECF Doc. 46) and Notice of Abuse
of Taking of Legal Mail (ECF Doc. 39)

Petitioner’s Emergency Request for Appointment of Counsel, docketed on May 24, 2022,
is his second request for appointment of counsel. (ECF Doc. 46.) His first such motion was
denied by the Court on February 17, 2022. (ECF Doc. 17.) In support of the new motion,
Petitioner argues that he is in lockdown, is unable to access the legal library or a tablet to
perform research, is unable to personally place his legal mail in the mailbox, and lacks the skill
or legal knowledge to adequately pursue his legal rights. (ECF Doc. 46.) Similar arguments
were addressed by the Court in its February 2022 order. (See ECF Doc. 17 pp. 5 (lack of legal
training and expertise), 6-9 (interference with legal materials / limited access to legal resources).)
On May 25, 2022, Respondent filed a brief in opposition which asserted that the Court
should deny the second request for counsel for the same reasons outlined in the Court’s prior
order. (ECF Doc. 48.) Petitioner’s response was docketed on June 7, 2022, asserting that he
cannot pursue his rights without the assistance of counsel, that he qualifies for the appointment
of counsel, and that counsel is requested to protect his constitutional rights. (ECF Doc. 50.)
Petitioner also filed a Notice of Abuse of Taking Legal Mail, which was docketed on
April 21, 2022, asserting that he had been sprayed with “mass” by correctional officers and had
his legal mail confiscated. (ECF Doc. 39.) Although the notice was not captioned as a motion,
Respondent filed a response noting that any challenge to the conditions of confinement is not a

cognizable ground for relief in a federal habeas proceeding. (ECF Doc. 41.) In a response
docketed on May 9, 2022, Petitioner asserted that his imprisonment was “significantly . . .
hurting his ability to investigate, research, receive legal mail timely, if at all, access to the legal
materials needed to pursue his ‘Actual Innocence’ claim.” (ECF Doc. 44.)
The Court initially observes that “a claim of ‘actual innocence’ is not itself a
constitutional claim, but instead a gateway through which a habeas petitioner must pass to have
his otherwise barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S.
390, 404, 113 S. Ct. 853, 860, 122 L. Ed. 2d 203 (1993). Further, while Respondent and
Petitioner submitted briefing in connection with the notice, the notice (ECF Doc. 39) is not
styled as a motion and Petitioner does not seek specific relief. (ECF Doc. 39, ECF Doc. 44.)

Nevertheless, the Court liberally construes the Notice (ECF Doc. 39) and related response (ECF
Doc. 44) as further argument from Petitioner in connection with his second request for the
appointment of counsel, and considers the arguments in that context.
Upon fully considering the arguments set forth by Petitioner in the above filings, the
Court finds Petitioner has not set forth facts or argument which support a finding that exceptional
circumstances warrant the appointment of counsel in this habeas action, for the same reasons set
forth in detail in the Court’s order on Petitioner’s first motion for the appointment of counsel.
(See ECF Doc. 17.) It is additionally noted that Petitioner’s objection to the February 17, 2022
order denying his request for counsel (ECF Doc. 22) and his objection to the March 1, 2022
order striking his reply to Respondent’s response to his supplement to motion to appoint counsel
(ECF Doc. 26) remain pending. For the reasons stated, the Court DENIES Petitioner’s second
motion for appointment of counsel (ECF Doc. 46).
III. CONCLUSION

For all of the reasons set forth above, the Court finds Petitioner timely sought to amend
his Petition, but that the Amended Petition (ECF Doc. 24) lacks appropriate supporting facts for
each of the seven asserted grounds for relief. Accordingly, the Court grants Petitioner thirty (30)
days from the date of this Order to comply with this Order and Habeas Rule 2 by setting forth the
seven grounds for relief identified in his Amended Petition (ECF Doc. 24 pp. 1-2) on AO Form
241. The Clerk of Court is directed to send to Petitioner a copy of AO Form 241 along with this
Order. Petitioner shall complete AO Form 241 in its entirety, including a statement of
supporting facts for each of the seven grounds for relief set forth in his Amended Petition (ECF
Doc. 24). As explained above, the Court may summarily deny relief as to one or more grounds
for relief if Petitioner fails to sufficiently plead each of the seven amended grounds for relief as

required by this Order and Habeas Rule 2.
Respondent’s Return of Writ is due within forty-five (45) days of Petitioner’s filing of AO
Form 241 as directed above. Because the Court finds no basis upon which to strike the
Transcripts previously filed by Respondent (ECF Doc. 19-2), Respondent is not required to refile
or send duplicate copies to Petitioner of the exhibits or transcripts that were previously filed in
this case. Petitioner will have thirty (30) days from the filing of the Amended Return of Writ to
file his Traverse. Respondent will then have fourteen days to file a Reply.
Additionally, as set forth in more detail above:
The Court DENIES as MOOT Petitioner’s Motion to Strike Respondent’s Return of Writ
(ECF Doc. 23), Motion to Apply Mailbox Rule (ECF Doc. 34), and Request for a Definite
Statement from Respondent (ECF Doc. 36).
The Court DENIES Petitioner’s Motion to Strike Doc #27, with Motion to Take Judicial

Notice of Amended Claims and Vacate Magistrate (ECF Doc. 32), Motion to Strike Transcripts
(ECF Doc. 45), Emergency Request for Appointment of Counsel (ECF Doc. 46), and Emergency
Motion for Case Docket with Motion to Provide Clarification on Coleman’s Definite Statement
Request. (ECF Doc. 47).
Except for Petitioner’s request for copies of the transcripts from trial court proceedings
on February 7, 2018 and August 20, 2018 (ECF Doc. 52 p. 3), which is DENIED as MOOT, the
Court DENIES WITHOUT PREJUDICE Petitioner’s requests for discovery, expansion of the
record, and evidentiary hearing. (ECF Doc. 18, ECF Doc. 25, ECF Doc. 38, ECF Doc. 42, ECF
Doc. 51, ECF Doc. 52, ECF Doc. 56). The Court also DENIES as MOOT Petitioner’s Motion to
Strike Respondent’s Response in Opposition to Petitioner’s Motion for Discovery and

Evidentiary Hearing (ECF Doc. 29).

Dated: September 20, 2022
__/s_/_ A_m__a_n_d_a_ M__. _K_n_a_p_p________________
AMANDA M. KNAPP
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10371250. Public record. Not legal advice.