Brown v. Johnston

Filing 19

ORDER ENTERED: Petitioner's request for the appointment of Counsel (Doc. 16 ) is denied. Signed by District Judge John W. Lungstrum on 04/28/21. Mailed to pro se party David Brown by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID BROWN,
Petitioner,
v.

CASE NO. 21-3010-JWL

MICHAEL A. JOHNSTON,
Colonel,
Respondent.
ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. At the time of
filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth,
Kansas. Petitioner is currently confined at FCI-Berlin in Berlin, New Hampshire. Petitioner
challenges his disciplinary proceedings and loss of good conduct time.
This matter is before the Court on Petitioner’s request for the appointment of counsel
(Doc. 16). Petitioner seeks the appointment of counsel to aid him in gathering evidence. In
particular, he seeks evidence of video recordings allegedly showing that Major Gessner went to
the mailroom during Petitioner’s D&A Board to gather evidence that was not made available to
Petitioner prior to the hearing. Petitioner also asks the Court to order Respondent to preserve all
security video from October 27, 2020, between the hours of 0700 and 1600, within the
Directorate of Inmate Administration, the Command Judge Advocate Offices, the mailroom, and
the main hallway from the CJA offices to the mailroom.
The Court granted Respondent an opportunity to respond to the request for appointment
of counsel and to address whether or not such video evidence exists and whether or not it can be
made available to Petitioner. Respondent filed a Response (Doc. 18) indicating that “[t]here are

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no available video records for [the D&A Board room] or any other camera system within the
USDB for October 27, 2020.” (Doc. 18, at 2; see Attached Declaration of William G. Lacuniak
at 1–2, ¶ 3.) Respondent states that “[u]nless specifically preserved as evidence pursuant to an
investigation or requested under a preservation order, all USDB video records are deleted
(overridden) after a maximum of 28 days due to the system’s technical parameters.” (Id. at 2,
¶ 3.)
The Court denies Petitioner’s request for appointment of counsel. Petitioner has no
constitutional right to counsel in a federal habeas corpus action. See Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). Rather, the decision whether to appoint counsel rests in the discretion of
the court. Swazo v. Wyoming Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th
Cir. 1994). A court may appoint counsel for a § 2241 petitioner if it “determines that the
interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Where an evidentiary hearing is not
warranted, appointment of counsel is not required. See Engberg v. Wyo., 265 F.3d 1109, 1122
n.10 (10th Cir. 2001) (affirming denial of appointed counsel for habeas petitioner where no
evidentiary hearing was necessary); see also Rules Governing § 2254 Cases, Rule 8(c), 28
U.S.C.A. foll. 2254 (“If an evidentiary hearing is warranted, the judge must appoint an attorney
to represent a moving party who qualifies to have counsel appointed under 18 U.S.C.
§ 3006A.”).
The Court previously denied Petitioner’s request for the appointment of counsel, finding
that considering Petitioner’s claims, his ability to present his claims, and the complexity of the
legal issues involved, the appointment of counsel in this matter is not warranted. See Long v.
Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (“In determining whether to appoint counsel, the
district court should consider a variety of factors, including the merits of the litigant’s claims, the

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nature of the factual issues raised in the claims, the litigant’s ability to present his claims, and the
complexity of the legal issues raised by the claims.”).
Petitioner’s instant request for appointment of counsel is based on his desire to obtain
assistance in gathering evidence. Because the evidentiary materials that Petitioner requests are
not available, his request for appointment of counsel is denied.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner’s request for the
appointment of counsel (Doc. 16) is denied.
IT IS SO ORDERED.
Dated April 28, 2021, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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