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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

GARY MOYE,

Petitioner,

vs. Case No. 3:10cv88/LAC/EMT

DAVID MORGAN,

Respondent.

_____________________________/

O R D E R

This cause is before the court upon Petitioner’s filing a handwritten “Emergency Petition for

Writ of Habeas Corpus” pursuant to 28 U.S.C. § 2241 (Doc. 1). Included within the petition are a

motion to proceed in forma pauperis and a motion for appointment of counsel. Petitioner has been

detained at the Escambia County Jail since October 2009. He complains that a Florida state court

judge ordered his release from custody on March 15, 2010, in connection with Florida charges but

that Respondent refuses to release Petitioner, citing an Alabama detainer. 

First, Petitioner failed to use the court-approved form for filing this petition. Local Rule

5.1(J) for the Northern District of Florida states that the court will not accept for consideration a

complaint under § 2241 unless the appropriate form is completed. Thus, Plaintiff must file his

petition on the form for use in § 2241 cases, even if he wishes to attach separate pages explaining

the facts that underlie the petition. Additionally, Petitioner failed to provide the requisite supporting

documentation for his motion to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(2). Therefore,

the motion will be denied without prejudice to Petitioner’s refiling it with the required supporting

documentation. 

The motion for appointment of counsel will also be denied. The appointment of counsel in

civil cases is not a constitutional right; rather, it is “a privilege that is justified in only by exceptional

circumstances, such as where the facts and legal issues are so novel or complex as to require the
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assistance of a trained practitioner.” Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). This

rule extends to post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111

S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991). Federal courts generally have endorsed the

appointment of counsel to represent legally unsophisticated prisoners who are financially unable to

obtain counsel in: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal

or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically

impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying

the claims; and (5) factually complex cases. James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure, § 12.3b (3d ed. 1998). A district court does not abuse its discretion,

by declining to appoint counsel where the issues in the case are “straightforward and capable of

resolution on the record” or the petitioner has a “good understanding of the issues and the ability to

present forcefully and coherently his contentions.” See Reese v. Fulcomer, 946 F.2d 247, 264 (3d

Cir. 1991). At this time, the issues in the case appear to be straightforward and capable of resolution

on the record; therefore, appointment of counsel is not warranted. 

If Petitioner wishes to proceed in this action, he must file an amended petition on the courtapproved form for use in § 2241 cases. To amend his petition, Petitioner should completely fill out

a new habeas petition form, marking it “Amended Petition.” Petitioner is advised that the amended

petition must contain all of his grounds for relief, and it should not in any way refer to the original

petition. The amended petition completely replaces all previous petitions; when an amended petition

is filed, all earlier petitions are disregarded. N.D. Fla. Loc. R. 15.1. 

Petitioner also states that he suffers from cirrhosis and that, due to the deliberate indifference

to his medical needs by certain Jail personnel, he recently spent five days in the hospital and nearly

died. To the extent Petitioner seeks to pursue these allegations, he is informed that the proper

avenue is through a civil rights complaint. It appears, however, that Petitioner is aware of the need

to proceed under 42 U.S.C. § 1983, as he filed a civil rights complaint regarding these allegations

the same day he filed the instant petition (see Case No. 3:10cv88/MCR/EMT). 

Accordingly, it is ORDERED:

1. Petitioner’s motion to proceed in forma pauperis is DENIED, without prejudice.

Case No. 3:10cv88/LAC/EMT
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2. Petitioner’s motion for appointment of counsel is DENIED, without prejudice.

3. The clerk shall send Petitioner a motion to proceed in forma pauperis and a prisoner

consent form and financial certificate approved for use in the Northern District. Additionally, the

clerk shall send Petitioner the petition form for use in § 2241 cases. This case number should be

written on the forms.

4. If Petitioner wishes to proceed with this action, he shall file, within THIRTY (30)

DAYS of the date of docketing of this order, an amended petition on the court-approved form for

use in § 2241 cases, titled “Amended Petition.” Petitioner shall also either pay the $5.00 filing fee

or submit a completed motion to proceed in forma pauperis. If Petitioner does not wish to proceed

with this action, he shall file a notice of voluntary dismissal within the time allotted.

5. Petitioner’s failure to comply with this order may result in a recommendation that this

case be dismissed.

DONE AND ORDERED this 25th day of March 2010.

 /s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case No. 3:10cv88/LAC/EMT