United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
DOCKET NO. 4
VERONICA L. DUFFY United States Magistrate Judge
This
matter is before the court on petitioner Scott Leroy
Wilson's pro se petition for habeas relief
pursuant to 28 U.S.C. § 2254. See Docket No. 1.
This matter was referred to this magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(A) and (B) and the October 16,
2014, standing order of the Honorable Karen E. Schreier,
district judge. Pending is Mr. Wilson's motion for the
appointment of counsel at the court's expense to
represent him in this matter. See Docket No. 4.
It is
well settled that "[a] habeas corpus proceeding is civil
in nature, and 'the Sixth Amendment right to counsel
afforded for criminal proceedings does not apply.'
''Hoggard v. Purkett, 29 F.3d 469, 471 (8th
Cir. 1994) (citing Boyd v. Groose, 4 F.3d 669, 671
(8th Cir. 1993)). Because Mr. Wilson has no constitutional
right to appointment of counsel in his habeas proceeding
(see Phelps v. United States, 15 F.3d 735, 737 (8th
Cir. 1994)), the district court has discretion to determine
whether to appoint counsel.[1] Sullivan v. Lockhart,
958 F.2d 823, 826 (8th Cir. 1992) (citing Ferguson,
905 F.2d at 213-214). Refusal by the court to appoint counsel
to assist petitioner in presenting a federal habeas corpus
petition does not violate petitioner's constitutional
rights. Hull v. Swenson, 431 F.2d 1194, 1195 (8th
Cir. 1970).
A court
may, ''in the interests of justice, ''appoint
representation to any financially eligible person who is
seeking relief under 28 U.S.C. § 2254. 18 U.S.C. §
3006A(a)(2)(B). The Eighth Circuit has set forth the
following standard with regard to discretionary appointments
of counsel for pro se habeas petitioners:
When exercising its discretion, a district court should first
determine whether a pro se habeas petitioner has presented a
nonfrivolous claim. If the petitioner has presented only
claims that are frivolous or clearly without merit, the
district court should dismiss the case on the merits without
appointing counsel. If the petitioner has presented a
nonfrivolous claim, the district court should then determine
whether, given the particular circumstances of the case, the
appointment of counsel would benefit the petitioner and the
court to such an extent that ''the interests of
justice so require'' it. To determine whether
appointment of counsel is required for habeas petitioners
with nonfrivolous claims, a district court should consider
the legal complexity of the case, the factual complexity of
the case, the petitioner's ability to investigate and
present [articulate] his claim, and any other relevant
factors.
Abdullah, 18 F.3d at 573 (internal citations
omitted); see also McCall v. Benson, 114 F.3d 754,
756 (8th Cir. 1997); Battle v. Armontrout, 902 F.2d
701, 702 (8th Cir. 1990).
At this
point in the proceedings it is clear that Mr. Wilson is not
entitled to appointment of counsel to assist him in pursuing
federal habeas relief. The settled record is clear, and this
court does not require the assistance of counsel to read and
understand it. Mr. Wilson appears capable of presenting and
articulating his claims to this court. See Abdullah,
18 F.3d at 573-74 (court held that although appellate counsel
could have presented a stronger argument in district court,
counsel would have been of little benefit in reading and
understanding the settled record). Thus, this court finds
that it is not in the interests of justice to appoint counsel
to assist Mr. Wilson in his federal habeas corpus petition.
Accordingly, it is hereby ORDERED that Mr. Wilson's
motion for the appointment of counsel, Docket No. 4 is
denied.
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Notes:
[1]A district court must appoint
counsel to represent petitioner in any evidentiary hearings
deemed necessary by the court. Abdullah v. Norris,
18 F.3d 571, 573 (8th Cir. 1994) (citing Rules Governing §
2254 Cases, Rule 8(c), 28 U.S.C.A. foll. § 2254). An
evidentiary hearing is not necessary when ''the
issues involved can be properly resolved on the basis of the
state court record.'' Smith v. Groose, 998
F.2d 1439, 1442 (8th Cir. 1993) (citing McCann v.
Armontrout, 973 F.2d 655, 661 (8th Cir. 1992)). A
petitioner is entitled to an evidentiary hearing in federal
court only if he shows ''both cause for failure to
adequately develop the facts in the postconviction state
court hearing and actual prejudice resulting
therefrom.'' Smith, 998 F.2d at 1442 (citing
McCann, 973 F.2d at 658). AA federal court should
grant a hearing if the facts ...