Lucero v. Bauer et al

Filing 10

MEMORANDUM AND ORDER denying 9 the Petitioner's Second Motion to Appoint Counsel. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ADAM RAY LUCERO, Petitioner, v. TYLYNN BAUER, CEO, et al., Respondents. ) ) ) ) ) ) ) ) ) 8:09CV385

MEMORANDUM AND ORDER

This matter is before the court on Petitioner's Motion for Appointment of Counsel. (Filing No. 9.) "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.) Thus, there is no need for the appointment of counsel at this time. IT IS THEREFORE ORDERED that: Petitioner's Motion for Appointment of Counsel (filing no. 9) is denied. December 10, 2009. BY THE COURT:

s/ Joseph F. Bataillon Chief United States District Judge