Lottman v. United States of America
ORDER denying 3 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 2/17/2021. (CG)
Case 4:21-cv-04025-KES Document 7 Filed 02/17/21 Page 1 of 3 PageID #: 34
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JACOB FRANCIS LOTTMAN,
UNITED STATES OF AMERICA,
ORDER DENYING MOVANT'S
APPOINTMENT OF COUNSEL
This matter is before the court on the pro se motion by movant Jacob
Francis Lottman to vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255. See Docket No. 1. Mr. Lottman now moves the court for an
appointment of counsel to represent him at court expense. See Docket No. 3.
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 2255 Cases in United States District Courts, 28 U.S.C. foll. ' 2255.
Those statutes provide in relevant part:
Case 4:21-cv-04025-KES Document 7 Filed 02/17/21 Page 2 of 3 PageID #: 35
18 U.S.C. ' 3006A(a)(2)(B):
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
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.
If an evidentiary hearing is warranted, the judge must
appoint an attorney to represent a moving party29 f3d
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 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.@
At this stage of these proceedings, the court concludes the appointment
of counsel for Mr. Lottman 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. To date, Mr. Lottman has done a good job of articulating
Case 4:21-cv-04025-KES Document 7 Filed 02/17/21 Page 3 of 3 PageID #: 36
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. Lottman’s motion for appointment of counsel (Docket
No. 3) is denied without prejudice.
DATED this 17th day of February, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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