Pugh v. Gordy

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON PUGH, 	)
AIS # 00212315, 	)
Petitioner, 	)
)
v. 	) 	CIVIL ACTION NO. 1:22-00322-KD-N
)
CHRISTOPHER GORDY, 	)
Correctional Warden III, 	)
Bibb Correctional Facility,1 	)
Respondent. 	)
ORDER
This habeas action is before the Court on various motions filed by Petitioner
Jason 	Pugh, 	who 	is 	currently 	an 	inmate 	at 	the 	Alabama 	Department 	of
Corrections’s 	Bibb 	Correctional 	Facility 	in 	Brent, 	Alabama, 	and 	is 	proceeding
without counsel (pro se):2
1 Christopher Gordy, the current head warden of Bibb Correctional Facility, is
substituted for Cynthia McCovery as the Respondent in this habeas action. The
Clerk 	of 	Court 	is 	DIRECTED 	to 	update 	the 	docket 	accordingly. 	See
(https://doc.alabama.gov/facility?loc=39); Rumsfeld v. Padilla, 542 U.S. 426, 434-35,
124 	S. 	Ct. 	2711, 	159 	L. 	Ed. 	2d 	513 	(2004) 	(““The 	federal 	habeas 	statute
straightforwardly provides that the proper respondent to a habeas petition is ‘the
person who has custody over [the petitioner].’ 28 U.S.C. § 2242; see also § 2243 (‘The
writ, or order to show cause shall be directed to the person having custody of the
person detained’) … [L]ongstanding practice confirms that in habeas challenges to
present physical confinement[,] the default rule is that the proper respondent is the
warden of the facility where the prisoner is being held, not the Attorney General or
some other remote supervisory official.”); Rule 2(a) of the Rules Governing Section
2254 Cases in the United States District Courts (“If the petitioner is currently in
custody under a state-court judgment, the petition must name as respondent the
state officer who has custody.”).
2 By electronic reference notations, the assigned District Judge has referred Pugh’s
petition and motions to the undersigned Magistrate Judge for appropriate action
under 28 U.S.C. § 636(a)-(b) and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b).
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I.
The motion for leave to proceed in forma pauperis dated September 12, 2022
(Doc. 4), is MOOT at this time, in light of Pugh’s subsequent payment of the $5
filing fee for this action. See (Doc. 9); 28 U.S.C. § 1914(a).
II.
Pugh’s motions to appoint counsel received November 2 and 21, 2022, and
September 18, 2023 (Docs. 6, 8, 25) are DENIED. 3
There is no right to counsel under the Sixth Amendment to the United States
Constitution in proceedings for postconviction relief, see Pennsylvania v. Finley, 481
U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987) (“We have never held that
prisoners have a constitutional right to counsel when mounting collateral attacks
upon their convictions, see Johnson v. Avery, 393 U.S. 483, 488, 89 S. Ct. 747, 750,
21 L. Ed. 2d 718 (1969), and we decline to so hold today. Our cases establish that
the right to appointed counsel extends to the first appeal of right, and no further.”);
Barbour v. Haley, 471 F.3d 1222, 1231 (11th Cir. 2006) (“The Sixth Amendment
applies only to criminal proceedings … [P]ostconviction relief is not part of the
criminal proceeding itself; rather, it is civil in nature. It is a collateral attack that
normally 	occurs 	only 	after 	the 	direct 	appeals 	process 	is 	completed 	and 	the
defendant's 	conviction 	has 	become 	final. 	Thus, 	the 	Sixth 	Amendment 	has 	no
application to the inmates’ claims for postconviction counsel.” (citations omitted)).
However, an indigent prisoner “could have a constitutional right under the Fifth
3 The request for a payment plan embedded within the first such motion is MOOT
in light of Pugh’s payment of the filing fee, see supra.
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Amendment’s due process clause, which the Supreme Court has interpreted as
requiring counsel to be appointed whenever ‘fundamental fairness’ would demand
it.” United States v. Webb, 565 F.3d 789, 794 (11th Cir. 2009) (citing Gagnon v.
Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1763, 36 L. Ed. 2d 656 (1973)). 	A
prisoner also does not have an absolute statutory right to counsel in federal
postconviction proceedings not involving a death sentence, as is the case here.4
Under 18 U.S.C. § 3006A, a court “may” appoint counsel for an indigent
person who “is seeking relief under section 2241, 2254, or 2255 of title 28” if “the
interests of justice so require…” 18 U.S.C. § 3006A(a)(2)(B). See also 28 U.S.C. §
2255(g) (“Except as provided in section 408 of the Controlled Substances Act, in all
proceedings brought under this section, and any subsequent proceedings on review,
the court may appoint counsel, except as provided by a rule promulgated by the
Supreme Court pursuant to statutory authority. Appointment of counsel under this
section shall be governed by section 3006A of title 18.”). “The Rules Governing 2254
Cases 	[in 	the 	United 	States 	District 	Courts], 	in 	turn, 	require 	counsel 	to 	be
appointed for indigent parties if necessary for effective discovery or if an evidentiary
hearing is warranted.” United States v. Johnson, 842 F. App’x 402, 405 (11th Cir.
2021) (per curiam) (unpublished) (citing Rules Governing Section 2254 Cases, Rules
6(a), 8(c)). And “[w]hen a party does not have a constitutional, statutory, or rule-
4 Cf. Weeks v. Jones, 100 F.3d 124, 126–27 (11th Cir. 1996) (“Under the Anti–Drug
Abuse Act of 1988, § 7001(b), 21 U.S.C. § 848(q)(4)(B) (1988), Congress established
an absolute right to counsel for indigent death-sentenced prisoners seeking federal
habeas relief … On its face, this statute grants indigent capital defendants a
mandatory 	right 	to 	qualified 	legal 	counsel 	in 	any 	federal 	post 	conviction
proceeding.” (quotation omitted)).
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based right to counsel, the district court may exercise its discretion as to whether to
appoint counsel.” Id.
Here, 	Pugh 	has 	not 	established 	that 	“fundamental 	fairness” 	demands
appointment of counsel under the Fifth Amendment, that the “interests of justice”
require 	appointment 	of 	counsel 	under 	§ 	3006A, 	or 	that 	any 	exceptional
circumstances warrant discretionary appointment of counsel at this time. Pugh has
shown more than sufficient ability to file papers with, and present his position to,
the Court, and his motion presents no exceptional circumstances that may warrant
appointment at this time.5 Pugh has also not shown that any discovery is necessary
at this time, see Rule 6 of the Rules Governing 2254 Cases in the United States
District Courts (“A judge may, for good cause, authorize a party to conduct discovery
… A party requesting discovery must provide reasons for the request. The request
must also include any proposed interrogatories and requests for admission, and
must specify any requested documents.”), much less that appointed counsel is
“necessary for effective discovery.” And a court is only required to appoint counsel
for a § 2254 evidentiary hearing if it first determines that “an evidentiary hearing is
warranted…” Rule 8(c) of the Rules Governing 2254 Cases in the United States
District Courts. As the Court has yet to order the Respondent to answer Pugh’s
petition, no evidentiary hearing is warranted at this time.
5 The mere fact that a pro se prisoner has no legal training and is otherwise limited
in his legal knowledge does not, by itself, justify appointing counsel under any of the
foregoing circumstances, as this is true of most pro se prisoner litigants, and would
in effect create a de facto right to counsel for any indigent non-lawyer prisoner
seeking collateral relief.
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To the extent Pugh requests that this Court order that he be appointed new
counsel in his pending state court criminal proceedings, this Court lacks power in
general to direct state court proceedings, and Pugh has cited no authority to the
contrary. See Lamar v. 118th Jud. Dist. Ct. of Tex., 440 F.2d 383, 384 (5th Cir.
1971) (per curiam) (“[F]ederal courts have no general power to issue writs of
mandamus to direct state courts and their judicial officers in the performance of
their duties where mandamus is the only relief sought.”); Lawrence v. Miami-Dade
Cnty. State Att'y Off., 272 F. App'x 781 (11th Cir. 2008) (per curiam) (unpublished)
(“Because the only relief Lawrence sought was a writ of mandamus compelling
action from state officials, not federal officials, the district court lacked jurisdiction
to grant relief and did not err in dismissing the petition.” (citing Lamar, 440 F. 2d
at 384)).
III.
Pugh’s “Motion of Complaint” received March 9, 2023 (Doc. 13), requests that
the Court “order[] the District Attorney, Stephen Mahone Billy, to vacate, or make
null and void,” a purportedly illegal sentence. To the extent said motion requests
that the Court take immediate action to direct Billy and/or other state officials, it is
DENIED because, as explained above, the Court lacks general authority to direct
the duties of state officials. However, the allegations in said motion shall also be
considered as supplementing Pugh’s habeas petition with additional allegations
and/or grounds for relief.
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IV.
Pugh’s “Motion for a ReHearing on the Case of 30-CC-577-578-2013” received
July 12, 2023 (Doc. 18), his motion requesting Billy’s recusal in his state criminal
proceedings received July 13, 2023 (Doc. 19), and his motion received September 1,
2023, requesting the Court order his state court counsel to withdraw and the state
court judge overseeing his criminal proceedings there to recuse (Doc. 23), are
DENIED, to the extent they request the Court to direct the state court and officials
to take certain actions. See supra. However, the allegations in said motions shall
also 	be 	considered 	as 	supplementing 	Pugh’s 	habeas 	petition 	with 	additional
allegations and/or grounds for relief.6
DONE and ORDERED this the 21st day of September 2023.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
6 To the extent any motion addressed by this order requests other relief not
expressly discussed herein, such relief is DENIED without additional analysis.
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