French v. Wallace

Filing 9

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis [Doc. #2] is DENIED AS MOOT. IT IS FURTHER ORDERED that petitioner's motions for appointment of counsel [Doc. #3 and #6] are DENIED, without prejudice. IT IS FURTHER ORDERED that petitioner's motion for evidentiary hearing [Doc. #4] is DENIED, without prejudice. Signed by District Judge John A. Ross on 4/4/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GERREK FRENCH,
Petitioner,
v.
IAN WALLACE,
Respondent.

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No. 4:13CV472 JAR

MEMORANDUM AND ORDER
Before the Court in this action brought pursuant to 28 U.S.C. § 2254, are
petitioner’s motions to proceed in forma pauperis, for appointment of counsel, and for
evidentiary hearing.
Because petitioner has paid the $5 filing fee in this action, his motion to
proceed without prepayment of the filing fee, or to proceed in forma pauperis, will be
denied as moot.
Petitioner’s motion for appointment of counsel will also be denied at this time.
There is no constitutional or statutory right to appointed counsel in civil cases.
Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In
determining whether to appoint counsel, the Court considers several factors, including
(1) whether the plaintiff has presented non-frivolous allegations supporting his or her
prayer for relief; (2) whether the plaintiff will substantially benefit from the
appointment of counsel; (3) whether there is a need to further investigate and present

the facts related to the plaintiff’s allegations; and (4) whether the factual and legal
issues presented by the action are complex. See Johnson v. Williams, 788 F.2d 1319,
1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
After considering these factors and reviewing petitioner’s forty-five (45) page
petition, the Court finds that the facts and legal issues involved are not so complicated
that the appointment of counsel is warranted at this time. Moreover, based on
petitioner's presentation of the issues in his petition, he seems quite capable of
litigating this action on his own. Therefore, his motion for appointment of counsel
will be denied, without prejudice, at this time.
Last, petitioner’s motion for evidentiary hearing will also be denied. See Rule
8 of the Rules Governing Section 2254 Cases. Under 28 U.S.C. § 2254(e)(2), a
federal district court may not grant an evidentiary hearing unless “the applicant has
failed to develop the factual basis of a claim in State court proceedings ... [and] the
claim relies on a factual predicate that could not have been previously discovered
through the exercise of due diligence; and [ ] the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.” An evidentiary hearing is not necessary when the merits of
petitioner's claims may be resolved based on the state court record. McCann v.
Armontrout, 973 F.2d 655, 658–59 (8th Cir.1992).
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At this stage of the litigation, it appears that the state court record contains
sufficient facts to make an informed decision on the merits of petitioner’s claims.
Petitioner’s claims challenge the sufficiency of the evidence before the trial court and
various matters of state law. Because petitioner’s claims do not require further
factual development and may be adequately resolved on the record, an evidentiary
hearing does not appear to be necessary. For that reason, his motion for evidentiary
hearing will be denied, without prejudice.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma
pauperis [Doc. #2] is DENIED AS MOOT.
IT IS FURTHER ORDERED that petitioner’s motions for appointment of
counsel [Doc. #3 and #6] are DENIED, without prejudice.
IT IS FURTHER ORDERED that petitioner’s motion for evidentiary hearing
[Doc. #4] is DENIED, without prejudice.
Dated this 4th day of April, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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