Fitzer v. Hamilton

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOE DEWAYNE FITZER, )
)
Petitioner, )
)
v. ) No. CIV 18-283-RAW-GLJ
)
CARRIE BRIDGES, Warden, )
)
Respondent. )
OPINION AND ORDER
Plaintiff has filed a “renewed” motion for appointment of counsel, or alternatively, motion
for leave to amend habeas petition with due process violation (Dkt. 52). He alleges that since the
denial of his first motion for appointment of counsel on May 16, 2023 (Dkt. 51), the Northern
District of Oklahoma issued its decision in Graham v. White, __ F. Supp. 3d __, No. 23-CV-0164-
CVE-SH, 2023 WL 4141662 (N.D. Okla. June 26, 2023). Petitioner asserts the Northern District
held that the Tulsa County District Court violated Graham’s due process rights by reinstating her
conviction after it was vacated pursuant to Bosse v. State, 383 P.3d 286 (Okla. Crim. App. 2021).
Respondent has filed a response to Plaintiff’s motion, objecting to appointment of counsel
or granting leave to amend (Dkt. 53), and Petitioner filed a reply (Dkt. 54). Petitioner states in his
reply to Respondent’s response to the motion that:
“[a]fter careful deliberation Petitioner asserts that he does not need to amend his
habeas petition in order to prevail with his McGirt claim. The habeas petition already
contains the necessary McGirt claim. And now the OCCA has denied Petitioner
relief under Matloff v. Wallace, after vacating his conviction and reinstating it, as was
the case in Graham. Petitioner, therefore, does not need to amend his habeas petition
with a new claim. . . .
(Dkt. 54 at 1-2). Because Petitioner no longer wants to amend his petition, his motion to amend the
petition is DENIED AS MOOT.
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Petitioner, however, alleges he should be appointed counsel, because the state district court’s
stay of its order vacating his convictions was illegal. Id. at 2. There is no constitutional right to
appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989);
Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to appoint counsel in
a civil matter lies within the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996
(10th Cir. 1991). “The burden is on the applicant to convince the court that there is sufficient merit
to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th
Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It
is not enough “that having counsel appointed would [assist the prisoner] in presenting his strongest
possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
The Court again has carefully reviewed the merits of Plaintiff’s claims, the nature of the
factual issues raised in his allegations, and his ability to investigate crucial facts. See McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (citing Maclin v. Freake, 650 F.2d 885, 887-88 (7th
Cir. 1981)). The Court concludes that Plaintiff appears capable of adequately presenting facts and
arguments. Therefore, Petitioner renewed motion for appointment of counsel is DENIED.
ACCORDINGLY, Plaintiff’s renewed motion for appointment of counsel, or alternatively,
motion for leave to amend habeas petition with due process violation (Dkt. 52) is DENIED.
IT IS SO ORDERED this 27th day of March 2024.
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