McClanahan et al v. Wilson et al

Filing 159

RULING AND ORDER: The 121 MOTION to Dismiss , 122 MOTION for Expedited Consideration of 121 MOTION to Dismiss, and 147 MOTION for Leave to File Second Amended Complaint are DENIED. Signed by Judge John W. deGravelles on 1/28/2021. (LLH)

Case 3:17-cv-01720-JWD-RLB

Document 159

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ALAN BOUDREAUX (#254702)

CIVIL ACTION NO.

VERSUS

20-120-BAJ-EWD

JASON KENT, ET AL.
ORDER
Before the Court a Motion for Appointment of Counsel (“Motion”), 1 filed by Alan
Boudreaux (“Petitioner”). The Motion will be denied. Appointed counsel is only required in a
habeas case if an evidentiary hearing is ordered, and there has not been a determination that an
evidentiary hearing is required in this case. Additionally, the interests of justice do not require
appointment of counsel at this time.
It is well-settled that a petitioner has no constitutional right to appointment of counsel in
a habeas proceeding. 2 Such a benefit is only required when the Court determines that an
evidentiary hearing is to be held on a § 2254 petition. 3 At this stage of the case, the Court has not
determined that an evidentiary hearing is necessary. To that end, Petitioner’s request is, at best,
premature. 4 The decision of whether to hold an evidentiary hearing is governed by 28 U.S.C. §
2254(e)(2). According to § 2254(e)(2), the district court may hold an evidentiary hearing only
when the petitioner has shown that either the claims raised rely on a new, retroactive rule of
constitutional law that was previously unavailable 5 or the claim relies on a factual basis that could

1

R. Doc. 20.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see also Wright v. West, 505 U.S. 277, 293 (1992) (no
constitutional right to counsel in habeas corpus proceedings); Ortlof v. Fleming, 88 F. App’x 715, 717 (5th Cir. 2004);
Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir. 1992).
3
Rule 8(c), Rules Governing § 2254 Cases; Urias v. Thaler, 455 F. App’x 522, 523 (5th Cir. 2011).
4
If an evidentiary hearing is ordered in the case, the Court will appoint counsel for Petitioner on its own motion.
5
28 U.S.C. § 2254(e)(2)(A)(I).
2

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not have been previously discovered by an exercise of due diligence; 6 and the facts underlying the
claim show by clear and convincing evidence that, but for the constitutional error, no reasonable
jury would have convicted the petitioner. 7 An evidentiary hearing is not required “when the record
is complete or the petitioner raised only legal claims that can be resolved without the taking of
additional evidence.” 8 On the record before the Court at this time, Petitioner has not established
that the record will be insufficient to resolve the claims raised. 9
The Court likewise does not find that the “interests of justice so require” the appointment
of counsel at this time. 10 In so finding, this Court notes that the Petition is not legally nor factually
complex, and Petitioner has demonstrated through his Petition and other numerous filings, 11 that
he understands the relevant issues and is capable of presenting his claims. Accordingly
IT IS ORDERED that Petitioner’s Motion for Appointment of Counsel 12 is DENIED.
Signed in Baton Rouge, Louisiana, on January 27, 2021.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

6

28 U.S.C. § 2254(e)(2)(A)(ii).
28 U.S.C. § 2254(e)(2)(B).
8
Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.1989).
9
Though Petitioner has filed a request for additional discovery (R. Doc. 21), he has not demonstrated that this
discovery is necessary for resolution of the claims before the Court.
10
See 18 U.S.C. § 3006A (“Whenever the United States magistrate judge or the court determines that the interests of
justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under
section 2241, 2254, or 2255 of title 28”).
11
R. Docs. 1, 10, 13, 16, 18, & 19.
12
R. Doc. 20.
7

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