United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER APPOINTING COUNSEL AND
EXPANDING THE STATE-COURT RECORD
KING, MAGISTRATE JUDGE
filed a pro-se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, to which Respondent responded in
opposition. (Dockets # 1, 13.) This matter is before the
Court on Petitioner's motion to appoint counsel and his
motion to withdraw his petition. (Dockets # 14 and 19.) The
Court referred this matter to the undersigned Magistrate
Judge “pursuant to 28 U.S.C. § 636(b)(1)(A) &
(B) for rulings on all non-dispositive motions; for
appropriate hearings, if necessary; and for findings of fact
and recommendations on any dispositive matter.” (Docket
# 7.) For the reasons below, the Court will GRANT
Petitioner's motion to appoint counsel (Docket # 14) and
will defer ruling on his motion to withdraw (Docket # 19).
Additionally, the Court will order Respondent to EXPAND the
of counsel in Section 2254 cases is warranted for any
financially eligible prisoner when “the interests of
justice so require.” Doyle v. Haney, No. CIVA
5:06CVP169 R, 2007 WL 647560, at *1 (W.D. Ky. Feb. 23, 2007)
(quoting 18 U.S.C. § 3006A(a)(2)(B)). A review of
Petitioner's prison trust fund account statement (Docket
# 16) indicates that he is financially eligible.
determining whether appointment of counsel is required for
prisoners seeking habeas relief ..., the court should
consider the factual and legal complexities of the case, the
prisoner's ability to investigate and present claims, the
existence of conflicting testimony, and any other relevant
factors.” Id. (citing Satter v.
Class, 976 F.Supp. 879, 885 (D.S.D. 1997)). For the
reasons detailed below, the fact that Petitioner filed a
motion to withdraw his petition shows a lack of understanding
of the legal requirements of the 1-year period of limitation
established by 28 U.S.C. § 2244(d) and constitutes an
“other relevant factor” warranting appointment of
counsel -- namely, that Petitioner appears to be unable to
prosecute his claims in his own self-interest. Additionally,
Petitioner's Claims 7 through 20 raise complex legal and
factual issues. Therefore, the interests of justice favor
appointment of counsel.
needs counsel to advise him regarding his motion to withdraw
December 22, 2011, the Kentucky Court of Appeals affirmed
Petitioner's convictions on direct appeal. Yarmey v.
Commonwealth, No. 2010-CA-000604-MR, 2011 WL 6743294
(Ky. Ct. App. Dec. 22, 2011). The Court of Appeals stamped
the opinion as “final” as of February 16, 2012.
(Docket # 13-1 at 122.)
2.5 months later, on May 3, 2012, Petitioner filed a pro-se
motion for post- conviction relief pursuant to Kentucky Rules
of Civil Procedure (CR) 60.02. (Docket # 13-1 at 148.) Later,
he filed another motion for post-conviction relief pursuant
to Kentucky Rules of Criminal Procedure (RCr) 11.42.
Yarmey v. Commonwealth, No. 2016-CA-001245-MR, 2019
WL 169133, at *1 (Ky. Ct. App. Jan. 11, 2019). Petitioner
requested an evidentiary hearing, which the trial court
ultimately granted. Id. Petitioner retained counsel
and filed a second RCr 11.42 motion, arguing ineffective
assistance of trial counsel. Id. The trial court
denied Petitioner's 60.02 and 11.42 motions. Id.
The Kentucky Court of Appeals affirmed the denial on January
11, 2019. Id.
6 months later, on or about July 18, 2019, Petitioner filed
the present petition. (Docket # 1.) Therefore, a total of
approximately 8.5 months of Petitioner's 1-year period of
limitation established by 28 U.S.C. § 2244(d) ran before
Petitioner filed his petition.
filing of a federal habeas corpus petition does not toll the
running of the 1-year period of limitation. See Duncan v.
Walker, 533 U.S. 167, 181-82 (2001) (holding that a
petition is not an “application for State
post-conviction or other collateral review” under
§ 2244(d)(2) and, therefore, its filing does not toll
the limitation period). Thus, Petitioner's 1-year period
of limitation expired approximately 3.5 months after July 18,
2019 -- on approximately November 1, 2019.
motion to withdraw “further requests this Honorable
Court grant him leave to refile his Habeas Corpus Petition
[after exhaustion of] the decision of the Jefferson Circuit
Court” on his recently- filed CR 60.02 motion. (Docket
# 19 at 2.) However, it is unclear whether the Court is
authorized to grant this request.
certain circumstances, a petitioner may make a showing
allowing the district court to hold a petition in abeyance
pending exhaustion of state-court remedies. See e.g.
Cross v. White, No. 5:15-CV- 00158-TBR, 2016 WL 7223440
(W.D. Ky. Dec. 13, 2016) (citing Rhines v. Weber,
544 U.S. 269, 273 (2005)). However, it is unclear whether the
present petition is properly classified as (or is
sufficiently analogous to) a so-called “mixed”
petition containing both exhausted and unexhausted claims to
allow the Court to hold Petitioner's petition in abeyance
while his pursues “unexhausted” claims (in his
recently-filed 60.02 motion). Therefore, Petitioner needs
counsel to advise him regarding his motion to withdraw his
the event Petitioner withdraws his motion to withdraw, he
will need counsel to assist him in prosecuting his Claims 7
petition raises 20 claims. Claim 1 is a Due Process claim,
which the state courts rejected on direct appeal. Yarmey
v. Commonwealth, No. 2010-CA-000604-MR, 2011 WL 6743294
(Ky. Ct. App. Dec. 22, 2011). Claims 2 through 6 are
ineffective assistance of trial counsel (IATC) claims, which
Petitioner alleges the state courts rejected in connection
with his post-conviction 60.02 and 11.42 motions. Yarmey
v. Commonwealth, No. 2016-CA-001245-MR, 2019 WL 169133
(Ky. Ct. App. Jan. 11, 2019). Claims 7 through 20 are IATC
claims, which Petitioner admits he did not ...