Dator v. McFadden

Filing 46

ORDER denying 44 MOTION to Appoint Counsel. The court does not anticipate the need for an evidentiary hearing, as the case will likely be resolved on the basis of the state court record. Signed by Magistrate Judge Shiva V Hodges on 7/28/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
James R. Dator, #129074,
Petitioner,
vs.
Joseph McFadden, Warden,
Respondent.

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C/A No.: 3:15-1698-JFA-SVH

ORDER

This matter is before the court on the motion of James R. Dator (“Petitioner”) to
appoint counsel. Petitioner has no constitutional right to counsel in federal habeas
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555–56 (1987) (no constitutional
right to counsel beyond first appeal of right); U.S. v. Riley, 21 F. App’x 139, 141–42 (4th
Cir. 2001); Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir. 1995) (no constitutional right to
counsel during federal habeas). The court may, in its discretion, however, appoint counsel
for a habeas petitioner when “the interests of justice so require.” 18 U.S.C.A. §
3006A(a)(2) (West Supp. 1993); see also Riley, 21 F. App’x at 142.
The interests of justice require the court to appoint counsel when the district court
conducts an evidentiary hearing on the petition. See Hoggard v. Purkett, 29 F.3d 469 (8th
Cir. 1994); Rule 8(c), Rules Governing Section 2254 Cases in the United States District
Courts. The appointment of counsel is discretionary when no evidentiary hearing is
necessary. See Hoggard, 29 F.3d at 471. In exercising its discretion, the court should
consider the legal complexity of the case, the factual complexity of the case, and
Petitioner’s ability to investigate and present his claims, along with any other relevant

factors. Id.; see also Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990). Where the
issues involved can be properly resolved on the basis of the state court record, a district
court does not abuse its discretion in denying a request for court-appointed counsel. See
Hoggard, 29 F.3d at 471.
The court does not anticipate the need for an evidentiary hearing, as the case will
likely be resolved on the basis of the state court record. If the court elects to hold an
evidentiary hearing, Petitioner may renew his motion or the court may appoint counsel
sua sponte at that time. For the foregoing reasons, Petitioner’s motion to appoint counsel
[ECF No. 44] is denied.
IT IS SO ORDERED.

July 28, 2016
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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