Jackson v. Denney

Filing 7

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Petitioner's motion for appointment of counsel is DENIED. [Doc. 2] Signed by Magistrate Judge Thomas C. Mummert, III on 12/17/09. (RJD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION MICHAEL J. JACKSON, Petitioner, vs. LARRY DENNEY, Respondent. ) ) ) ) ) ) ) ) )

Case number 4:09cv1878 TCM

MEMORANDUM AND ORDER

Pending in this 28 U.S.C. § 2254 action is the motion of petitioner, Michael J. Jackson, for the appointment of counsel. Petitioner seeks habeas relief from the seventy-year sentence imposed on his conviction on two counts of first degree sodomy. He raises six grounds, each articulately presented with cogent legal arguments and factual summaries. Respondent has today been ordered to show cause why Plaintiff should not be granted his requested relief. There is no constitutional or statutory right to appointment of counsel in habeas corpus proceedings, see Morris v. Dormire, 217 F.3d 556, 558 (8th Cir. 2000); "instead, [the appointment of counsel] is committed to the discretion of the trial court," McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997). In considering whether to appoint counsel, the factual and legal complexity of the case and the petitioner's ability to investigate and articulate his claims should be considered. Morris, 217 F.3d at 558-59; McCall, 114 F.3d at 756; Nachtigall v. Class, 48 F.3d 1076, 1081-82 (8th Cir. 1995). Counsel must be appointed, however, if an evidentiary hearing is to be held. See Rule 8(c), Rules Governing Section 2254 Cases in the United States District Courts (mandating that counsel be appointed if an evidentiary hearing is to be held); accord Armstrong v. Kemna, 534 F.3d 857, 868 n.5 (8th Cir. 2008).

At this early stage in the proceedings, the issues articulately raised in the petition appear to be neither factually nor legally complex and to be capable of being resolved without an evidentiary hearing. Accordingly, IT IS HEREBY ORDERED that Petitioner's motion for appointment of counsel is DENIED. [Doc. 2]

/s/ Thomas C. Mummert, III THOMAS C. MUMMERT, III UNITED STATES MAGISTRATE JUDGE Dated this 17th day of December, 2009.

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