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Lee v. Weber

June 14, 2010


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Petitioner, Neil Edward Lee, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Docket 1. On January 8, 2010, respondent moved to dismiss, to which Lee did not respond. Docket 12. On February 18, 2010, Lee moved the court for the appointment of counsel. Docket 15. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matters were assigned to Magistrate Judge John E. Simko for purposes of conducting any necessary hearings, including evidentiary hearings, and submitting to the court proposed findings of fact and recommendations. Docket 3.

On February 26, 2010, Magistrate Judge Simko submitted his report and recommendation advising that Lee's request for the appointment of counsel be denied, that Lee's § 2254 petition be denied as untimely, that no certificate of appealability be issued, and that respondent's motion to dismiss be granted. Docket 16. On March 15, 2010, pursuant to 28 U.S.C. § 636(b)(1), Lee filed timely objections to Magistrate Judge Simko's report and recommendations. Docket 18.


In accordance with 28 U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely made and specific. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990). Therefore, the court has reviewed (1) whether Lee is entitled to appointment of counsel, and (2) whether Lee's § 2254 petition was timely filed.

I. Appointment of Counsel

"[T]here is neither a constitutional nor statutory right to counsel in habeas." McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). Rather, the appointment of counsel in habeas proceedings is committed to the discretion of the court, and is appropriate when "the interests of justice so require." Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994) (quoting 18 U.S.C.A. § 3006A(a)(2), (a)(2)(B) (West Supp. 1993)). In deciding whether to appoint counsel, the court considers "the legal complexity of the case, the factual complexity of the case, and the petitioner's ability to investigate and present his claims, along with any other relevant factors." Id.

Lee's petition contains claims that are neither legally nor factually complex. Each ground for post-conviction relief that is asserted in Lee's habeas petition turns on legal issues with which the court is familiar: illegal search and seizure, the denial of due process, and ineffective assistance of counsel. See Abdullah, 18 F.3d at 573 (noting that legal issues such as ineffective assistance of counsel and due process are not complex issues). With regard to factual complexity, the state record provides sufficient means for resolving any complex factual issues that may exist in the case. See Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) ("Where the issues involved can be properly resolved on the basis of the state record, a district court does not abuse its discretion in denying a request for court-appointed counsel." (citing Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993))).

Finally, it is apparent from Lee's habeas petition and his objections to Magistrate Judge Simko's report and recommendation that Lee is capable of investigating and presenting his claims. See Abdullah, 18 F.3d at 574 (concluding that petitioner's well-written motion, along with the fact that petitioner asserted nearly all the claims he had originally asserted at the state level, demonstrated that petitioner was capable of presenting his claims). Therefore, the interests of justice do not require the appointment of counsel to this matter, and Magistrate Judge Simko's recommendation that Lee's motion for appointment of counsel be denied is accepted.

II. Timeliness of § 2254 Habeas Petition

The AEDPA's statute of limitations for a § 2254 habeas petition is one year. 28 U.S.C. § 2244(d)(1). This limitation period begins to run from the latest of the following dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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