Case: 11-40589 Document: 00511708213 Page: 1 Date Filed: 12/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2011
No. 11-40589
Summary Calendar Lyle W. Cayce
Clerk
SOILO E. URIAS,
Petitioner-Appellant
v.
RICK THALER,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:10-CV-75
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
Soilo E. Urias, Texas prisoner # 1189938, was convicted by a jury of
aggravated sexual assault of a child, enhanced, and sentenced to life in prison.
Urias instituted an action in the district court by filing a motion for the
appointment of counsel pursuant to 18 U.S.C. § 3006A. The district court denied
Urias’s motion, which was the only relief sought by Urias, and dismissed the
action. This appeal followed. We review the district court’s denial of Urias’s
motion for abuse of discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40589 Document: 00511708213 Page: 2 Date Filed: 12/28/2011
No. 11-40589
1987) (considering the denial of a motion for the appointment of counsel in a 42
U.S.C. § 1983 case filed by a prisoner).
No constitutional right to counsel exists in federal postconviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). However, under
Rule 8(c) of the Rules Governing § 2254 Cases, “if an evidentiary hearing is
warranted, the [district court] must appoint an attorney to represent a petitioner
who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”
Furthermore, under § 3006A(a)(2)(B), a § 2254 petitioner should be appointed
counsel when “the interests of justice so require.”
The district court concluded that Urias’s motion was premature. Because
Urias had not actually filed a § 2254 petition, he had not raised any issues
requiring an evidentiary hearing; thus, Urias was not entitled to appointed
counsel under Rule 8(c) of the Rules Governing § 2254 Cases. Urias has failed
to show that the district court abused its discretion in denying his motion. See
Cupit, 835 F.2d at 86.
Accordingly, the district court’s judgment is AFFIRMED. Urias’s motion
for default judgment is DENIED.
2