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Hill v. Norris

August 3, 2007

JESSIE HILL ADC # 104136 PETITIONER
v.
LARRY NORRIS, DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending are Petitioner's Motion for a Certificate of Appealability, Motion to Appoint Counsel, and Motion for Discovery and for a Trial Transcript.*fn1

Petitioner appeals from an Order and Judgment*fn2 dismissing his 28 U.S.C. § 2254 claim without prejudice because it was a successive habeas petition*fn3 filed without approval from the Circuit Court of Appeals.

Under 28 U.S.C. § 1291, appellate courts have jurisdiction over final orders. There is no final order for purposes of appellate review where the complaint, but not the action, is dismissed.*fn4 This petition was dismissed without prejudice "pending an order from the Eighth Circuit Court of Appeals containing an authorization for filing,"*fn5 and Petitioner was told how to apply for authorization.*fn6 In view of this, the dismissal was not intended to be a final order, barring Petitioner from amending his petition to include the proper authorization.

There is no a constitutional nor statutory right to a lawyer in a habeas proceedings -- the appointment of a lawyer is at the trial judge's discretion.*fn7 Since Petitioner has not yet received approval to file for habeas relief, the request for an attorney is premature.

Petitioner's right to discovery is also up to the trial court's discretion, and is granted only after Petitioner shows she made a sufficient investigation during the state court proceedings.*fn8 It is too soon to consider if Petitioner has a right to discovery or the production of a trial transcript.

Because this is not an appeal from a final order, the Motion for a Certificate of Appealability (Doc. No. 42) is DENIED. Petitioner's Motion to Appoint Counsel (Doc. No. 43) and Motion for Discovery and For Trial Transcript (Doc. No. 47) are DENIED because they are premature. Petitioner is directed to ask the Eighth Circuit Court of Appeals for approval to file a habeas corpus petition for a second time.

IT IS SO ORDERED this 3rd day of ...


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