Swopes v. USA

Filing 4

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that movant' s motion for appointment of counsel (Docket No. 3 ) is DENIED at this time. IT IS FURTHER ORDERED that movant shall have thirty (30) days from the date of this order in which to show cau se in writing why his 28 U.S.C. § 2255 motion should not be dismissed as time-barred. IT IS FURTHER ORDERED that if movant fails to comply with this order within thirty (30) days, movant's 28 U.S.C. § 2255 motion will be dismissed without further proceedings and without further notice. Signed by District Judge Ronnie L. White on 11/17/2020. (KCD)

Case: 4:20-cv-01126-RLW Doc. #: 4 Filed: 11/17/20 Page: 1 of 3 PageID #: 22

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HOSEA LATRON SWOPES,
Movant,
v.

UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:20-cv-01126-RL W

MEMORANDUM AND ORDER

This matter comes before the Court on movant Hosea Latron Swopes's motion for
appointment of counsel. (Docket No. 3). There is neither a statutory nor constitutional right to
appointed counsel in proceedings pursuant to 28 U.S.C. § 2255. See Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) (rejecting suggestions that a right to counsel on discretionary appeals be
established, and explaining "that the right to appointed counsel extends to the first appeal of right,
and no further"); and Baker v. United States, 334 F.2d 444, 447 (8th Cir. 1964) (stating that "a
federal convict filing a motion under § 2255 is not entitled, as a matter of constitutional right, to
have court-appointed counsel in the preparation and presentation of such a motion in the District
Court or the Court of Appeals"). Rather, the Court may appoint counsel in a § 2255 case if the
interests of justice so require. See 28 U.S.C. § 2255(g); 18 U.S.C. § 3006A(a)(2)(B); and Hoggard

v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (stating that it has never "been held that there is a
constitutional right to counsel in a habeas action" and that appointment of counsel is reviewed "for
abuse of discretion").
However, if the Court conducts an evidentiary hearing, the interests of justice require the
appointment of counsel. Rule 8(c) of the Rules Governing § 2255 Proceedings for the United States

Case: 4:20-cv-01126-RLW Doc. #: 4 Filed: 11/17/20 Page: 2 of 3 PageID #: 23

District Courts ("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"); and

Green v. United States, 262 F.3d 715, 716 (8 1h Cir. 2001) (determining that it was error for the
district court to deny movant counsel when it held an evidentiary hearing).
In this case, the Court has not conducted an evidentiary hearing. To the contrary, on
October 22, 2020, the Court directed movant to show cause why his§ 2255 motion should not be
dismissed as time-barred. (Docket No. 2). In that order, the Court instructed movant to provide an
explanation as to why his motion was not untimely, or why such untimeliness should be excused.
Movant has not demonstrated why he needs appointed counsel to provide this particular
information. Therefore, movant's motion for appointment of counsel will be denied at this time.
Movant also requests an extension of time to respond to the Court's order to show cause.
The Court will give movant thirty days from the date of this order in which to submit his response.
Failure to respond will result in the dismissal of this action without further proceedings and without
further notice.
Accordingly,

IT IS HEREBY ORDERED that movant' s motion for appointment of counsel (Docket
No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that movant shall have thirty (30) days from the date of
this order in which to show cause in writing why his 28 U.S.C. § 2255 motion should not be
dismissed as time-barred.

2

Case: 4:20-cv-01126-RLW Doc. #: 4 Filed: 11/17/20 Page: 3 of 3 PageID #: 24

IT IS FURTHER ORDERED that if movant fails to comply with this order within thirty

(30) days, movant's 28 U.S.C. § 2255 motion will be dismissed without further proceedings and
without further notice.

Dated this

~y of~, 2020.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

3