Howard v. Houston
MEMORANDUM AND ORDER denying 11 Motion to Appoint Counsel ; denying 13 Motion for Hearing. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(ADB, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STUART D. HOWARD,
ROBERT P. HOUSTON,
This matter is before the court on Petitioner’s Motion to Appoint Counsel (Filing
No. 11) and Motion for Evidentiary Hearing (Filing No. 13). As discussed below, both
Motions will be denied.
I. Motion for Evidentiary Hearing
Petitioner has requested that an evidentiary hearing be conducted on his claims.
(Filing No. 13.) Rule 8(a) of the Rules Governing Section 2254 Cases in the United
States District Courts states in pertinent part: “If the petition is not dismissed, the judge
must review the answer, any transcripts and records of state-court proceedings, and any
materials submitted under Rule 7 to determine whether an evidentiary hearing is
warranted.” When deciding whether to grant an evidentiary hearing, a federal court
must consider whether such a hearing could enable the habeas petitioner to prove the
petition’s factual allegations, which, if true, would entitle the petitioner to federal habeas
relief on his claims. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). An evidentiary
hearing may be held only when the habeas petition “alleges sufficient grounds for
release, relevant facts are in dispute, and the state courts did not hold a full and fair
evidentiary hearing.” Sawyer v. Hofbauer, 299 F.3d 605, 610 (6th Cir. 2002) (internal
Here, the court has not yet reviewed the Petition for Writ of Habeas Corpus,
Respondent’s Answer, or the State Court Records. Without reviewing these materials,
the court is unable to determine whether an evidentiary hearing on Petitioner’s claims
is necessary. Accordingly, the court will deny Petitioner’s Motion without prejudice.
The court will reconsider Petitioner’s Motion if, following review of the record in this
matter, the court determines that an evidentiary hearing is necessary. As such, Petitioner
need not file additional motions for evidentiary hearings.
Motion to Appoint Counsel
Petitioner has asked for the appointment of counsel in this matter. (Filing No. 11.)
“There is neither a constitutional nor statutory right to counsel in habeas proceedings;
instead, [appointment] is committed to the discretion of the trial court.” McCall v. Benson,
114 F.3d 754, 756 (8th Cir. 1997). As a general rule, counsel will not be appointed unless
the case is unusually complex or the petitioner’s ability to investigate and articulate the
claims is unusually impaired or an evidentiary hearing is required. See, e.g., Morris v.
Dormire, 217 F.3d 556, 558-59 (8th Cir. 2000), cert. denied, 531 U.S. 984 (2000);
Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (citations omitted). See also Rule
8(c) of the Rules Governing Section 2254 Cases in the United States District Courts
(requiring appointment of counsel if an evidentiary hearing is warranted.) The court has
carefully reviewed the record and finds that there is no need for the appointment of counsel
at this time.
IT IS THEREFORE ORDERED THAT: Plaintiff’s Motion to Appoint Counsel
(Filing No. 11) and Motion for Evidentiary Hearing (Filing No. 13) are denied without
DATED this 11th day of January, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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