Fool Bull v. Young et al

Filing 21

ORDER denying 20 [Second] Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 12/19/2017. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ADRIAN FOOL BULL,

4:16-CV-04121-LLP

Petitioner,
vs.
WARDEN DARIN YOUNG; and
THE ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,

ORDER DENYING SECOND MOTION
FOR APPOINTMENT OF COUNSEL
DOCKET NO. 20

Respondents.

Petitioner, Adrian Fool Bull has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. ' 2254. Mr. Fool Bull’s petition was referred to this
magistrate judge pursuant to 28 U.S.C. ' 636(b)(1)(A) and (B) and the
October 16, 2014, standing order of the Honorable Karen E. Schreier, United
States District Judge. Mr. Fool Bull has filed a second motion asking the court
to appoint counsel to represent him at the court’s expense. See Docket No. 20.
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
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(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).
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 the state court record, a district court does not abuse
its discretion in denying a request for court-appointed counsel.@

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Here, it is not yet known whether an evidentiary hearing will be
warranted in this case or whether Mr. Fool Bull will be allowed to conduct any
discovery. Neither party has filed any motions requesting court action in this
matter, therefore this matter has remained stagnant. If the parties desire a
court ruling a detailed motion seeking specific relief should be filed.
Accordingly, it is hereby
ORDERED that Mr. Fool Bull’s motion for the appointment of counsel
[Docket No. 20] is denied without prejudice. Counsel will be appointed by the
court if an evidentiary hearing is held in this matter or if other grounds for
appointment of counsel arise. It is further
ORDERED that the deadline for filing motions in this case is Wednesday,
January 10, 2018.
DATED this 19th day of December, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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