Fisher v. Stanwick et al

Filing 10

ORDER denying 9 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 6/2/2017. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

CHRISTOPHER BRIAN FISHER,

4:17-CV-04053-KES

Petitioner,
vs.
JENNIFER STANWICK; AND THE
ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
DOCKET NO. 9

Respondents.

This matter is before the court on petitioner Christopher Brian Fisher’s
pro se petition for habeas relief pursuant to 28 U.S.C. § 2254. See Docket No.
1. This matter 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, district judge. Pending is Mr. Fisher’s motion for
the appointment of counsel at the court’s expense to represent him in this
matter. See Docket No. 9.
It is well settled that A[a] habeas corpus proceeding is civil in nature, and
>the Sixth Amendment right to counsel afforded for criminal proceedings does
not apply.= @ Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (citing Boyd
v. Groose, 4 F.3d 669, 671 (8th Cir. 1993)). Because Mr. Fisher has no
constitutional right to appointment of counsel in his habeas proceeding (see

Phelps v. United States, 15 F.3d 735, 737 (8th Cir. 1994)), the district court
has discretion to determine whether to appoint counsel.1 Sullivan v. Lockhart,
958 F.2d 823, 826 (8th Cir. 1992) (citing Ferguson, 905 F.2d at 213-214).
Refusal by the court to appoint counsel to assist petitioner in presenting a
federal habeas corpus petition does not violate petitioner=s constitutional
rights. Hull v. Swenson, 431 F.2d 1194, 1195 (8th Cir. 1970).
A court may, Ain the interests of justice,@ appoint representation to any
financially eligible person who is seeking relief under 28 U.S.C. ' 2254. 18
U.S.C. ' 3006A(a)(2)(B). The Eighth Circuit has set forth the following standard
with regard to discretionary appointments of counsel for pro se habeas
petitioners:
When exercising its discretion, a district court should first
determine whether a pro se habeas petitioner has presented a
nonfrivolous claim. If the petitioner has presented only claims that
are frivolous or clearly without merit, the district court should
dismiss the case on the merits without appointing counsel. If the
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district court must appoint counsel to represent petitioner in any
evidentiary hearings deemed necessary by the court. Abdullah v. Norris, 18
F.3d 571, 573 (8th Cir. 1994) (citing Rules Governing ' 2254 Cases, Rule 8(c),
28 U.S.C.A. foll. ' 2254). An evidentiary hearing is not necessary when Athe
issues involved can be properly resolved on the basis of the state court record.@
Smith v. Groose, 998 F.2d 1439, 1442 (8th Cir. 1993) (citing McCann v.
Armontrout, 973 F.2d 655, 661 (8th Cir. 1992)). A petitioner is entitled to an
evidentiary hearing in federal court only if he shows Aboth cause for failure to
adequately develop the facts in the postconviction state court hearing and
actual prejudice resulting therefrom.@ Smith, 998 F.2d at 1442 (citing
McCann, 973 F.2d at 658). AA federal court should grant a hearing if the facts
are in dispute or if a fair evidentiary hearing was not conducted in state court.@
Ferguson v. Jones, 905 F.2d 211, 214 (8th Cir. 1990) (citing Wallace v.
Lockhart, 701 F.2d 719, 729 (8th Cir. 1983)).
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petitioner has presented a nonfrivolous claim, the district court
should then determine whether, given the particular
circumstances of the case, the appointment of counsel would
benefit the petitioner and the court to such an extent that Athe
interests of justice so require@ it. To determine whether
appointment of counsel is required for habeas petitioners with
nonfrivolous claims, a district court should consider the legal
complexity of the case, the factual complexity of the case, the
petitioner=s ability to investigate and present [articulate] his claim,
and any other relevant factors.
Abdullah, 18 F.3d at 573 (internal citations omitted); see also McCall v.
Benson, 114 F.3d 754, 756 (8th Cir. 1997); Battle v. Armontrout, 902 F.2d
701, 702 (8th Cir. 1990).
In Hoggard, petitioner presented claims similar to those presented by
Mr. Fisher in his federal habeas petition, namely ineffective assistance of
counsel (among others). Hoggard, 29 F.3d at 470. The court affirmed the
district court=s denial of petitioner=s request for counsel on the basis that his
petition was not factually or legally complex, he was capable of understanding
and presenting his claims, and the petition could be decided on the basis of the
state court record. Id. at 472.
Hoggard is consistent with the holding in Abdullah, another Eighth
Circuit case in which petitioner asserted, in his federal habeas petition, claims
of ineffective assistance of counsel, insufficient evidence to sustain his
conviction, and denial of due process. Abdullah, 18 F.3d at 572. The Eighth
Circuit affirmed the district court=s denial of petitioner=s request for
appointment of counsel on the following grounds: petitioner=s claims are not
legally or factually complex and do not involve difficult questions of law;
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petitioner appeared capable of presenting his claims to district court; petitioner
pleaded nearly all his claims at the state court level and those he did not plead
were frivolous; counsel would have been of little benefit to the court in reading
and understanding the settled record; and the interests of justice do not
require appointment of counsel. Id. at 571-74.
Here, Mr. Fisher’s claims are not complex. The law of ineffective
assistance of counsel is well-settled:
First, the defendant must show that counsel=s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the >counsel=
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel=s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Based on the above well-settled case law, it is clear that Mr. Fisher is not
entitled to appointment of counsel to assist him in pursuing federal habeas
relief. The settled record, which includes a state habeas hearing, is clear, and
this court does not require the assistance of counsel to read and understand it.
Mr. Fisher appears capable of presenting and articulating his claims to this
court. See Abdullah, 18 F.3d at 573-74 (court held that although appellate
counsel could have presented a stronger argument in district court, counsel
would have been of little benefit in reading and understanding the settled

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record). Thus, this court finds that it is not in the interests of justice to
appoint counsel to assist Mr. Fisher in his federal habeas corpus petition.
Accordingly, it is hereby
ORDERED that Mr. Fisher’s motion for the appointment of counsel,
Docket No. 9 is denied.
DATED this 2nd day of June, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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