Wilson v. Dooley et al

Filing 10

ORDER denying 4 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 6/5/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

SCOTT LEROY WILSON,

4:17-CV-04057-KES

Petitioner,
vs.
CHIEF WARDEN ROBERT DOOLEY; AND
THE ATTORNEY GENERAL OF THE
STATE OF SOUTH DAKOTA,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
DOCKET NO. 4

Respondents.

This matter is before the court on petitioner Scott Leroy Wilson’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. Wilson’s motion for the appointment of
counsel at the court’s expense to represent him in this matter. See Docket No. 4.
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. Wilson 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 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
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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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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).
At this point in the proceedings it is clear that Mr. Wilson is not entitled to
appointment of counsel to assist him in pursuing federal habeas relief. The settled
record is clear, and this court does not require the assistance of counsel to read
and understand it. Mr. Wilson 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
record). Thus, this court finds that it is not in the interests of justice to appoint
counsel to assist Mr. Wilson in his federal habeas corpus petition. Accordingly, it
is hereby
ORDERED that Mr. Wilson’s motion for the appointment of counsel, Docket
No. 4 is denied.
DATED this 5th day of June, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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