Tucker v. Stange

Filing 5

MEMORANDUM AND ORDER re: #3 MOTION to Appoint Counsel filed by Petitioner Allen Tucker, #2 MOTION for Leave to Proceed in forma pauperis filed by Petitioner Allen Tucker - IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis (ECF No. 2) is GRANTED. IT IS FURTHER ORDERED that petitioner's motion to appoint counsel (ECF No. 3) is DENIED without prejudice. Signed by Magistrate Judge Noelle C. Collins on 1/7/2022. (JMC)

Case: 1:22-cv-00003-NCC Doc. #: 5 Filed: 01/07/22 Page: 1 of 2 PageID #: 171

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ALLEN TUCKER,
Petitioner,
v.
BILL STANGE,
Respondent.

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No. 1:22-CV-3-NCC

MEMORANDUM AND ORDER
This matter is before the Court upon two motions filed by petitioner Allen Tucker. In the
first motion, petitioner seeks leave to proceed in forma pauperis. Having reviewed the motion
and considered the financial information therein, the Court has determined to grant plaintiff leave
to proceed in forma pauperis. In the second motion, plaintiff asks the Court to appoint counsel to
represent him in this action. For the reasons explained below, this motion will be denied, without
prejudice.
There is no constitutional right to appointed counsel in a habeas action. See 28 U.S.C.
§ 2254(h) (stating that a court may appoint counsel for a financially eligible petitioner); see also
Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (noting that habeas proceedings are civil
proceedings in which the Sixth Amendment right to counsel is inapplicable, and that it has never
“been held that there is a constitutional right to counsel in a habeas action.”). Instead, a court
may appoint counsel to represent a financially eligible habeas petitioner if the court determines
that the “interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). See also 28 U.S.C.
§ 2254(h). If the district court conducts an evidentiary hearing, the interests of justice require the
appointment of counsel. Hoggard, 29 F.3d at 471; see Rule 8(c), Rules Governing Section 2254

Case: 1:22-cv-00003-NCC Doc. #: 5 Filed: 01/07/22 Page: 2 of 2 PageID #: 172

Cases in the United States District Courts. Otherwise, the appointment of counsel is
discretionary. Hoggard, 29 F.3d at 471 (citation omitted). In exercising such discretion, district
courts should consider the legal and factual complexity of the case, the petitioner’s ability to
investigate and present his claims, and any other relevant factors. Id.
Based upon the record now before the Court, it is not apparent that the appointment of
counsel is warranted at this time. This case appears legally and factually straightforward,
petitioner has so far demonstrated his ability to present his claims and arguments to the Court,
and there is no indication that petitioner’s claims involve information that is not readily available
to him. However, recognizing that circumstances may change, the Court will deny the motion for
the appointment of counsel without prejudice, and will entertain future such motions, if
appropriate.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion to appoint counsel (ECF No. 3) is
DENIED without prejudice.
Dated this 7th day of January, 2022.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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