Pasek v. Young et al

Filing 10

ORDER denying 5 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 4/18/2018. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMES GREGORY PASEK,

5:18-CV-05020-JLV

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

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
DOCKET NO. 5

Respondents.

Petitioner, James Gregory Pasek, an inmate at the South Dakota State
Penitentiary in Sioux Falls, South Dakota, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. ' 2254. Mr. Pasek’s petition was referred to this
magistrate judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and the October 16,
2014, standing order of the Honorable Jeffrey L. Viken, Chief District Judge.
Mr. Pasek has filed a motion asking the court to appoint counsel to represent
him at the court’s expense. See Docket No. 5.
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
**
(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

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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.@
Here, it is not yet known whether an evidentiary hearing will warranted
in this case. Thus far, Mr. Pasek has competently described his claims.
Accordingly, it is hereby
ORDERED that Mr. Pasek’s motion for the appointment of counsel
[Docket No. 5] is denied. Counsel will be appointed by the court if an
evidentiary hearing is held in this matter. Alternately, Mr. Pasek may resubmit
a request for appointed counsel at a later date should the court determine his
petition is timely and the need for assistance of counsel is otherwise
demonstrated.
DATED this 18th day of April, 2018.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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