UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HERSCHEL S. CRAIN, JR., )

)

Petitioner, )

)

v. ) CAUSE NO.: 3:12-CV-38-TLS

)

SUPERINTENDENT, MIAMI )

CORRECTIONAL FACILITY, )

)

Respondent. )

OPINION AND ORDER

The Petitioner, Herschel S. Crain, Jr., a prisoner confined at the Miami Correctional

Facility, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Custody [ECF No. 1], challenging his 1997 Hamilton County convictions for murder and felony

battery. The Respondent has filed his Return to Order to Show Cause [ECF No. 9], in which he

argues that the Petitioner procedurally defaulted most of his claims and that the state courts

reasonably adjudicated his remaining claims. This matter is before the Court on the Petitioner’s

Motion for Appointment of Counsel [ECF No. 5], his Motion to Withdraw his Petition Without

Prejudice [ECF No. 12], his Motion to Amend/Correct his Motion to Withdraw his Petition [ECF

No. 15], and his Motion for Extension of Time to File Traverse [ECF No. 16]. 

MOTION FOR APPOINTMENT OF COUNSEL

 Whenever “the court determines that the interests of justice so require, representation

may be provided for any financially eligible person who . . . is seeking relief under section 2241,

2254, or 2255 of title 28.” 18 U.S.C. § 3006A(a)(2)(B). “[A]ppointment of counsel for indigents

in habeas corpus and section 2255 proceedings rests in the sound discretion of district courts

unless denial would result in fundamental fairness impinging on due process rights.” Winsett v.

Washington, 130 F.3d 269, 281 (7th Cir. 1997) (quoting LaClair v. United States, 374 F.2d 486,
489 (7th Cir.1967)). The Seventh Circuit has stated that appointment of counsel is necessary

“only ‘if, given the difficulty of the case and the litigant’s ability, [a petitioner] could not obtain

justice without an attorney . . . could not obtain a lawyer on [his] own, and . . . would have had a

reasonable chance of winning with a lawyer at [his] side.’” Winsett, 130 F.3d at 281 (quoting

Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997)). The Seventh Circuit applies “liberal

standards to this inquiry, because there is a certain circularity to the argument. An unskilled lay

defendant may have trouble showing the court which of his arguments has serious legal merit,

whereas a lawyer may be able to see right away which parts of the case have possibilities.”

Howard v. Gramley, 225 F.3d 784, 794 (7th Cir. 2000). Analysis of a request for appointment of

counsel should include a consideration of the applicant’s “competence to litigate his claims.”

Pruitt v. Mote, 503 F.3d 647, 660 (7th Cir. 2007).

This Petitioner’s claims are not extraordinary or complex, and he has not demonstrated

any inability to research and adequately present his claims. On the contrary, his filings so far

indicate to the Court that he is well able to represent his interests. The issues and arguments are

already framed by the state court record, which will be reviewed by this Court. Accordingly, the

Court concludes that the Petitioner is competent to litigate his claims and will deny his request

for appointment of counsel.

MOTIONS TO WITHDRAW OR STAY THE PETITION

After the Respondent filed his Return to Order to Show Cause, the Petitioner filed a

Motion to Withdraw his Petition Without Prejudice, stating that “in order to prevent a ruling of

procedural default against the Petition for habeas corpus above, Petitioner must first attempt to

exhaust all claims fully in the state court.” (Mot. to Withdraw 1, ECF No. 12.) In the Motion to

Withdraw, the Petitioner requests that the Court dismiss his Petition without prejudice, and 

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suggests that he wishes to return to state court, litigate unexhausted claims, and then return to

federal court with a new habeas petition. Subsequently, the Petitioner filed a Motion to

Amend/Correct his Motion to Withdraw his Petition, in which he asks the Court to use the stay

and abeyance procedure described in Rhines v. Weber, 544 U.S. 269 (2005), and to stay his

present habeas petition rather than dismiss it without prejudice. 

Under Rhines v. Weber, the Court has discretion to stay rather than dismiss a petition

containing unexhausted claims when a dismissal “would effectively end any chance at federal

habeas review.” Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006). If the Court were to

conclude that a habeas petition filed by the Petitioner in the future would be untimely, the Court

should not dismiss his current Petition. 

The Respondent has filed a Response [ECF No. 14] in which he advises the Court that

“[s]hould this Court dismiss Petitioner’s habeas action without prejudice, he has 25 days

remaining . . . to timely file a habeas petition.” (Response 4, ECF No. 14.) According to the

Respondent’s analysis, the Petitioner used all but twenty-five days of his time available under

the statute of limitations before filing his Petition, and “the filing of a petition for habeas corpus

in federal court does not toll the statute of limitations.” Rhines v. Weber, 544 U.S. at 274–75.

Because the Petitioner’s statutory time period to file a habeas petition has now expired, dismissal

of this Petition would effectively end any chance at federal habeas review by the Petitioner.

Accordingly, the Court will deny his Motion to Withdraw his Petition Without Prejudice. 

In his Motion to Amend/Correct, the Petitioner also asks this Court to stay these

proceedings, pursuant to Rhines v. Weber, until he is able to return to state court and exhaust his

remaining claims. The Respondent argues that a stay is not appropriate because the Petitioner

has procedurally defaulted his unexhausted claims.

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Under Rhines v. Weber, if there are unexhausted claims, this Court must determine

whether “there was good cause for the petitioner’s failure to exhaust his claims first in state

court,” 544 U.S. at 277, and even where there was good cause for that failure, the district court

should not “grant him a stay when his unexhausted claims are plainly meritless,” id. The

Petitioner does not state in either his Motion to Withdraw or his subsequent Motion to

Amend/Correct his Motion to Withdraw specifically what claims he wishes to attempt to present

to the state courts by means of a successive petition for post-conviction relief, nor does he

attempt to show good cause for not having presented these claims to the state courts in his direct

appeal or in his earlier post-conviction proceedings. Because the Petitioner has not met his

burden under Rhines by showing that he has good cause for not having presented his claims to

the state court earlier and that the unexhausted claims have merit, the Court will deny his request

for a stay. 

MOTION FOR EXTENSION OF TIME TO FILE TRAVERSE

On October 26, 2012, the Petitioner filed a Motion for Extension of Time to File

Traverse, requesting a second extension of time until November 30, 2012, within which to file

his Traverse. The Petitioner’s previous deadline for filing his Traverse was October 26. The

Petitioner filed his Traverse [ECF No. 17] on November 30, 2012. The Court will grant the

Motion for Extension of Time, making the Traverse timely filed as of November 30. 

CONCLUSION

For the foregoing reasons, the Court: (1) DENIES the Petitioner’s Motion for

Appointment of Counsel [ECF No. 5]; (2) DENIES the Petitioner’s Motion to Withdraw his

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Petition Without Prejudice [ECF No. 12]; (3) DENIES the Petitioner’s Motion to Amend/Correct

his Motion to Withdraw his Petition [ECF No. 15]; and (4) GRANTS his Motion for Extension

of Time to File Traverse [ECF No. 16]. 

SO ORDERED on December 12, 2012. 

 

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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