Towle v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Towle
v. Civil No. 15-cv-117-SM
Warden, New Hampshire State
Prison for Men
REPORT AND RECOMMENDATION
Before the court is New Hampshire State Prison inmate
Robert Towle’s “omnibus” motion (doc. no. 8), seeking a hearing,
appointed counsel, the excuse of his procedural defaults, a
finding that he received ineffective assistance and an
inadequate trial, and relief from a previous deadline set by the
court.
DISCUSSION
I. Premature Requests
In his omnibus motion, Towle requests a finding of this
court that he received ineffective assistance of counsel and
that his trial process was inadequate. These requests are
denied, without prejudice, as premature. The petition has not
yet been served on respondent, and thus, the respondent has not
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had the opportunity to respond to the claims. A ruling on the
claims is therefore inappropriate at this time, and,
accordingly, that aspect of the motion should be denied without
prejudice as premature.
Towle also requests that the court excuse any procedural
defaults of any of his claims. The court has already denied a
previous request to excuse any procedural default of
petitioner’s claims as premature, without prejudice to Towle’s
ability to seek such relief if and when a procedural default
defense is raised to any of his claims. See Order (Aug. 30,
2015). For the same reasons, the request is still premature,
and should be denied as such.
Towle seeks an evidentiary hearing. Again, prior to
service of the petition on the respondent, no evidentiary
hearing is warranted, and the request for a hearing is therefore
premature. Towle may seek an evidentiary hearing at a later
date, if appropriate, pursuant to 28 U.S.C. § 2254(e)(2) and
Rule 8 of the Rules Governing § 2254 Procedures, to the extent
permitted under Cullen v. Pinholster, 563 U.S. 170, 185-86
(2011) (limiting federal habeas courts’ ability to consider new
evidence not in state court record in reviewing § 2254
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petition). Accordingly, the motion for an evidentiary hearing
should be denied without prejudice to refiling after respondent
has appeared, consistent with this Report and Recommendation.
II. Appointment of Counsel
Towle requests the appointment of counsel to represent him
in this matter, asserting that he has insufficient legal
knowledge or expertise to pursue this matter on his own. Towle,
however, has filed several pleadings and motions in which he has
been able to clearly identify his claims and other requests for
relief. Towle has failed to assert any exceptional
circumstances such that fundamental fairness impinging on his
right to due process is likely to result if counsel is not
appointed at this time. See DesRosiers v. Moran, 949 F.2d 15,
23 (1st Cir. 1991). The request for court-appointed counsel
should be denied without prejudice to being refiled if an
evidentiary hearing is scheduled, or other circumstances show
that the interests of justice so require in the future.
III. Relief from October 22, 2015, Deadline
Towle seeks to be relieved from the October 22, 2015,
deadline previously set by the court for Towle to file either a
motion to amend or motion to stay. As Towle has now filed a
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motion to amend, which has been ruled on in an order issued this
date, the request is moot.
Conclusion
For the foregoing reasons, the district judge should deny
without prejudice all of the relief requested in the omnibus
motion (doc. no. 8). Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2). Failure to file
objections within the specified time waives the right to appeal
the district court’s order. See Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 23, 2016
cc: Robert Towle, pro se
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