Blaine v. United States of America

Filing 13

ORDER denying movant Joshua Jay Blaine's 11 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 10/30/17. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JOSHUA JAY BLAINE,

4:17-CV-04138-KES

Movant,
ORDER DENYING MOTION FOR
APPOINTMENT OF ATTORNEY

vs.

Docket No. 11
UNITED STATES OF AMERICA,

Respondent.

This matter is pending before the court on the pro se motion to vacate,
correct, or set aside his sentence filed pursuant to 28 U.S.C. § 2255 by movant
Joshua Jay Blaine. See Docket No. 1. Mr. Blaine now moves the court to
appoint counsel to represent him. See Docket No. 11.
“There 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 2255 Cases in United States District Courts, 28 U.S.C. foll. § 2255.
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 moving party 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 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, “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.”

2

At this stage of these proceedings, the court concludes the appointment
of counsel for Mr. Blaine is not in the interests of justice. It has not yet been
determined whether discovery will be taking place or whether an evidentiary
hearing must be held—respondents have not yet even filed their response to
Mr. Blaine’s motion. To date, Mr. Blaine has done a good job of articulating the
law and facts in support of his motion to vacate, set aside, or correct, as well as
articulating grounds for relief in other pleadings, including the instant motion
for appointment of counsel.
The court will revisit this issue should the court conclude an evidentiary
hearing is necessary or should other circumstances arise that cause the court
to believe the interests of justice would be served by appointing counsel.
Accordingly, no good cause appearing, it is hereby
ORDERED that Mr. Blaine's motion for appointment of counsel [Docket
No. 11] is denied without prejudice.
DATED this 30th day of October, 2017.

BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

3