Walton v. Ballard

Filing 19

MEMORANDUM OPINION and ORDER denying without prejudice Petitioner's 2 MOTION for an evidentiary hearing; denying Petitioner's 2 MOTION for Appointment of Counsel. Signed by Magistrate Judge Cheryl A. Eifert on 12/9/2015. (cc: Petitioner; counsel of record) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TONY J. WALTON,
Petitioner,
v.

Case No. 2:15-cv-11423

DAVID BALLARD, Warden,
Mt. Olive Correctional Complex,
Respondent.

MEMORANDUM OPINION and ORDER
Pending before the Court is Petitioner’s Motion for Appointment of Counsel and
Motion for Evidentiary Hearing, (ECF No. 2). Petitioner requests that the Court appoint
him counsel for “discovery purposes” and asserts that appointment of counsel is in the
interest of justice. (Id. at 2). Additionally, Petitioner argues that an evidentiary hearing is
necessary to establish his actual innocence. (Id.) Petitioner claims that he would present
three (unidentified) alibi witnesses at the hearing. (Id.) He also insists that the testing of
certain physical evidence found at the crime scene should occur before any evidentiary
hearing, so that the results may be produced at the hearing. (Id.)
In regard to Petitioner’s request for appointment of counsel, the law is well-settled
that a habeas petitioner has no constitutional right to counsel. Pennsylvania v. Finley,
481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1990). The Criminal Justice Act, 18
U.S.C. § 3006A, authorizes the United States District Court to appoint counsel to
represent financially eligible individuals in actions brought pursuant to 28 U.S.C. § 2254,
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“whenever the United States magistrate judge or the court determines that the interests
of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). An analogous standard is set forth in
28 U.S.C. § 1915(e)(1), which governs the appointment of counsel for indigent litigants in
civil actions. In both circumstances, the matter is left to the sound discretion of the court.
As a general rule, habeas petitioners and indigent civil litigants are only provided counsel
in “exceptional circumstances.” See, e.g., Rice v. Riley, No. 4:13–3049–TMC, 2014 WL
5524461, at *1 (D.S.C. Oct. 31, 2014). When determining whether to appoint counsel, the
court should consider several factors, including (1) the type and complexity of the case;
(2) the ability of the petitioner to adequately investigate and present his claim; (3) the
likelihood of success on the merits of the application; and (4) the apparent need for an
evidentiary hearing in order to resolve the case. See, e.g., Whisenant v. Yuam, 739 F.2d
160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. United States Dist.
Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989); Hoggard v. Purkett, 29 F.3d
469, 471 (8th Cir. 1994). According to the Eighth Circuit Court of Appeals:
The interests of justice require the court to appoint counsel when the district
court conducts an evidentiary hearing on the petition. The appointment of
counsel is discretionary when no evidentiary hearing is necessary. 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. 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.
Hoggard, 29 F.3d at 471.
In this case, Petitioner has previously filed a direct appeal, a state habeas petition,
and an appeal of the state habeas court’s decision. Accordingly, the issues raised by
Petitioner have been well-briefed in the past, and Petitioner can use those documents to
provide guidance in this action. Moreover, Petitioner appears capable of presenting of his
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arguments as he has adequately briefed his claims in his numerous pro se filings. In
addition, at this juncture, the grounds asserted by Petitioner do not merit an evidentiary
hearing. Accordingly, because Petitioner fails to demonstrate exceptional circumstances
that justify the appointment of counsel, the undersigned DENIES his request for
appointment of counsel.
As for Petitioner’s request for an evidentiary hearing, the Supreme Court has
recognized that the decision to grant an evidentiary hearing on a § 2254 petition is within
the discretion of the district court, so long as the petitioner is not barred from obtaining
an evidentiary hearing pursuant to § 2254(e)(2). Schriro v. Landrigan, 550 U.S. 465, 468,
127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). With respect to conducting evidentiary hearings
in § 2254 cases, subsection (e)(2) states:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failure to develop the
factual basis of a claim is not established unless there is lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner's counsel.” Williams v. Taylor, 529 U.S.
420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). “Diligence for purposes of the opening

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clause [of § 2254(e)(2)] depends upon whether the prisoner made a reasonable attempt,
in light of the information available at the time, to investigate and pursue claims in state
court . . . .” Id. at 435. “If the petitioner was diligent in pursuing the claim in state court,
he cannot have ‘failed to develop’ the claim, and § 2254(e)(2) does not bar an evidentiary
hearing.” Wolfe v. Johnson, 565 F.3d 140, 167 (4th Cir. 2009) (quoting Williams, 529 U.S.
at 430). The Fourth Circuit has held that, where § 2254(e)(2) “does not proscribe an
evidentiary hearing . . . a § 2254 petitioner ‘who has diligently pursued his habeas corpus
claim in state court is entitled to an evidentiary hearing in federal court, on facts not
previously developed in the state court proceedings, if the facts alleged would entitle him
to relief, and if he satisfies one of the six factors enumerated by the Supreme Court in
Townsend v. Sain, [372 U.S. at 313].’”1 Wolfe, 565 F.3d at 168-69 (quoting Conaway v.
Polk, 453 F.3d 567, 582 (4th Cir.2006)). However, “‘[a]n evidentiary hearing is not
required on issues that can be resolved by reference to the state court record.’” Flippo v.
McBride, No. 5:05-cv-00765, 2009 WL 1543915, at *7 (S.D.W.Va. May 29, 2009) (quoting
Schriro, 550 U.S. at 474). Furthermore, the Fourth Circuit has recognized that in § 2254
cases, “‘federal evidentiary hearings ought to be the exception, not the rule.’” Winston v.
Kelly, 592 F.3d 535, 552 (4th Cir. 2010) (quoting Pike v. Guarino, 492 F.3d 61, 70 (1st
Cir. 2007)). Finally, it is worth noting that when analyzing a state court's rejection of a
state prisoner's claim under § 2254(d)(1) (whether the state court’s decision was contrary
to, or an unreasonable application of, clearly established federal law), a federal habeas

The Supreme Court held in Townsend that a federal court must grant an evidentiary hearing to a habeas
petitioner if: “(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual
determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by
the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of
newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing;
or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair
fact hearing.” 372 U.S. at 313.
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court is “limited to the record that was before the state court that adjudicated the claim
on the merits.” Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d
557 (2011).
In this case, Petitioner has yet to provide any evidence or argument that would lead
the Court to conclude that further factual development of his claims at an evidentiary
hearing is required. For instance, Petitioner claims that three alibi witnesses, who did not
testify at Petitioner’s trial, would testify at an evidentiary hearing in this Court. However,
Petitioner fails to identify those witnesses, describe the substance of their testimony, or
supply their affidavits. Without that information, the Court cannot determine whether
Petitioner meets the standard for § 2254(e)(2) or, if § 2254(e)(2) is inapplicable, whether
Petitioner meets the requirements for an evidentiary hearing described in Wolfe.
Consequently, the undersigned DENIES Petitioner’s request for an evidentiary hearing,
without prejudice to Petitioner’s ability to refile a motion for an evidentiary hearing in
light of the standards set forth above.
For the aforementioned reasons, Petitioner’s Motion for Appointment of Counsel
and Motion for Evidentiary Hearing, (ECF No. 2), is DENIED.
The Clerk is instructed to transmit a copy of this Order to Petitioner and counsel
of record.
ENTERED: December 9, 2015

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