Burgess v. Ballard

Filing 20

MEMORANDUM AND OPINION AND ORDER denying 5 MOTION by Scott B. Burgess for Appointment of Counsel. Signed by Magistrate Judge Cheryl A. Eifert on 4/18/2017. (cc: attys; any unrepresented party) (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
SCOTT B. BURGESS,
Petitioner,
v.

Case No. 2:16-cv-10949

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

MEMORANDUM OPINION AND ORDER
Currently pending is Petitioner’s Motion for the Appointment of Counsel, (ECF
No. 5). For the following reasons, the court DENIES Petitioner’s Motion, without
prejudice to the filing of a renewed motion should there be a change of circumstance
that makes the need for counsel apparent.
The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, authorizes United States
District Courts to appoint counsel to represent financially eligible individuals in habeas
actions brought pursuant to 28 U.S.C. § 2254, “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). This standard is similar to the one applied in determining whether to
appoint counsel in civil actions governed by 28 U.S.C. § 1915(e)(1), which states that
the appointment of counsel rests within the sound discretion of the court. In other
words, Petitioner has no constitutional right to counsel in this case. Whether counsel

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should be appointed depends upon several factors, including (1) the type and
complexity of the case; (2) the ability of the litigant 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 (1989)) (holding that the
appointment of counsel is discretionary, “but it is an abuse of discretion to decline to
appoint counsel where the case of an indigent plaintiff presents exceptional
circumstances.”); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (holding that
“[t]he appointment of counsel is discretionary when no evidentiary hearing is
necessary.”); and Brown v. Virginia, No. 1:10CV162 JCC/IDD, 2011 WL 1897432, at
*10 (E.D. Va. May 18, 2011) (“Rule 6(a) of the Rules Governing § 2254 Cases in the
United States District Courts provides that a court may appoint counsel if it is
“necessary for effective utilization of discovery procedures,” and Rule 8(c) mandates
that counsel be appointed only “[i]f an evidentiary hearing is required.”).
Having reviewed the filings made by Petitioner to date, he appears fully capable
of presenting his arguments at this stage of the proceedings. The preliminary issue of
exhaustion is currently being addressed; the state court record has been produced by
Respondent for use by Petitioner; and the need for an evidentiary hearing is not
apparent. Therefore, the appointment of counsel is not appropriate at this time.
However, should circumstances change, or an evidentiary hearing become necessary,
the court will reconsider its ruling.

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The Clerk is directed to provide a copy of this Order to Petitioner, Respondent,
and counsel of record.
ENTERED: April 18, 2017

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