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MILLER v. STATE, C14-4123-MWB. (2015)

Court: District Court, N.D. Iowa Number: infdco20150202762 Visitors: 11
Filed: Jan. 30, 2015
Latest Update: Jan. 30, 2015
Summary: ORDER LEONARD T. STRAND, Magistrate Judge. This matter is before the court on the petitioner's application for a writ of habeas corpus (Doc. No. 1), application for appointment of counsel (Doc. No. 2) and application to proceed in forma pauperis (Doc. No. 3). The petitioner filed those applications on December 22, 2014. The petitioner did not pay the required filing fee. See 28 U.S.C. 1914. Based on the plaintiff's statements, the court concludes that the plaintiff does not have sufficien
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ORDER

LEONARD T. STRAND, Magistrate Judge.

This matter is before the court on the petitioner's application for a writ of habeas corpus (Doc. No. 1), application for appointment of counsel (Doc. No. 2) and application to proceed in forma pauperis (Doc. No. 3). The petitioner filed those applications on December 22, 2014. The petitioner did not pay the required filing fee. See 28 U.S.C. § 1914.

Based on the plaintiff's statements, the court concludes that the plaintiff does not have sufficient funds to pay the required filing fee. 28 U.S.C. § 1914(a) (requiring $5.00 filing fee). Thus, the plaintiff's application to proceed in forma pauperis is granted. See generally 28 U.S.C. § 1915. Further, the court believes that the petitioner will benefit from the assistance of counsel. Accordingly, the petitioner's application for appointment of counsel is granted. The clerk's office is directed to appoint an attorney to represent the petitioner in this matter.

Currently confined at the Iowa State Penitentiary in Fort Madison, Iowa, the petitioner brings this action under 28 U.S.C. § 2254 to challenge the legality of his conviction and resulting confinement. See State v. Miller, No. 2-498/11-1064, 821 N.W.2d 287, 2012 Iowa App. LEXIS 586 (Iowa Ct. App. 2012); State v. Miller, No. FECR056346 (Woodbury Cnty. Dist. Ct. 2011); see also Miller v. State, No. 13-0998, 854 N.W.2d 73, 2014 Iowa App. LEXIS 690 (Iowa Ct. App. 2014); Miller v. State, No. PCCV152749 (Woodbury Cnty. Dist. Ct. 2013).2 The clerk's office is directed to send a copy of the application for a writ of habeas corpus by certified mail to the respondent and the Iowa Attorney General in accordance with Rule 4, Rules Governing Section 2254 Cases. The respondent is directed to file an answer to the application for a writ of habeas corpus in accordance with Rule 5, Rules Governing Section 2254 Cases, by no later than March 13, 2015.

IT IS SO ORDERED.

FootNotes


1. The petitioner brings this action against the State of Iowa, but the proper respondent in a federal habeas corpus action is "the person having custody of the person detained." 28 U.S.C. § 2243; see also 28 U.S.C. § 2242 (stating application shall allege the name of the person who has custody over him); Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L. Ed. 2d 443 (1973) ("The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody."). Thus, the petitioner improperly named the State of Iowa as the respondent.
2. Iowa state court criminal and civil records may be accessed online at: http://www.iowacourts.gov/For_the_Public/Court_Services/Docket_Records_Search/in dex.asp. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (addressing court's ability to take judicial notice of public records).
Source:  Leagle

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