Brende v. Young et al

Filing 7

ORDER denying 6 Motion to Appoint Counsel; denying 6 Motion for transcripts. Signed by US Magistrate Judge Veronica L. Duffy on 6/24/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STEVEN ALLEN BRENDE,

4:16-CV-04084-KES

Petitioner,
ORDER ON MOTION
vs.
DARIN YOUNG, WARDEN; AND MARTY
JACKLEY, ATTORNEY GENERAL OF
THE STATE OF SOUTH DAKOTA;
Respondents.
This matter is before the court pursuant to a petition for a writ of habeas
corpus filed pro se by Steven Allen Brende pursuant to 28 U.S.C. § 2254. See
Docket No. 1. All pretrial matters have been referred to this magistrate judge
pursuant to the October 16, 2014, standing order of the Honorable Karen E.
Schreier, district judge, and 28 U.S.C. § 636(b)(1)(A) and (B).
Mr. Brende has filed a motion for appointment of counsel, citing the facts
that he is the plaintiff herein and that he is indigent. See Docket No. 6. AThere
is no recognized constitutional right under the Sixth Amendment for the
appointment of counsel in habeas corpus cases.@ Hoggard v. Purkett, 29 F.3d
469, 471 (8th Cir. 1994). Because a habeas action is civil in nature, the Sixth
Amendment right to counsel applicable in criminal proceedings does not apply.
Id.

The statutory basis for the appointment of counsel in a habeas case is
found at 18 U.S.C. ' 3006A(a)(2)(B) and Rules 6(a) & 8(c), Rules Governing
Section 2254 Cases in United States District Courts, 28 U.S.C. foll. ' 2254.
Those statutes provide in relevant part:
18 U.S.C. ' 3006A(a)(2)(B):
(2)

Whenever the United States magistrate judge or
the court determines that the interests of justice
so require, representation may be provided for
any financially eligible person whoB
**
(B) is seeking relief under section 2241, 2254, or
2255 of title 28

Rule 6(a):
If necessary for effective discovery, the judge must
appoint an attorney for a petitioner who qualifies to
have counsel appointed under 18 U.S.C. ' 3006A.
Rule 8(c):
If an evidentiary hearing is warranted, the judge must
appoint an attorney to represent a petitioner who
qualifies to have counsel appointed under 18 U.S.C. '
3006A . . . These rules do not limit the appointment of
counsel under ' 3006A at any stage of the proceeding.
The appointment of counsel in a habeas case is discretionary when no
evidentiary hearing is necessary. Hoggard, 29 F.3d at 471 (citations omitted).
In this case, respondents have not yet responded to Mr. Brende’s petition. It is
not known whether an evidentiary hearing will be warranted. AIn exercising its
discretion, the district court should consider the legal complexity of the case,
the factual complexity of the case, and the petitioner=s ability to investigate and
present his claims, along with any other relevant factors.@ Id. Most
importantly, Awhere the issues involved can be properly resolved on the basis of
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the state court record, a district court does not abuse its discretion in denying
a request for court-appointed counsel.@
The court concludes that Mr. Brende’s motion for appointment of counsel
is without merit at this point in the proceedings. He has not shown that his
case is so factually or legally complex that the court would benefit from having
counsel to articulate Mr. Brende’s claims. Furthermore, the court has notified
Mr. Brende and respondents of a possible statute of limitations issue in this
case and has asked both parties to address that issue. In so doing, the court
explained thoroughly the law applicable to the statute of limitations under
AEDPA. See Docket No. 5. Mr. Brende has been directed to address the
various factual events related to his conviction and subsequent state habeas
proceedings. Id. No counsel is necessary to simply state forthrightly what
events have occurred in Brende’s case in state court. Accordingly, it is hereby
ORDERED that Mr. Brende’s motion for appointment of counsel [Docket
No. 6] is denied.
IT IS FURTHER ORDERED that Mr. Brende’s request for transcripts is
denied as premature.
DATED this 24th day of June, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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