Burgess v. Ballard
Filing
49
MEMORANDUM OPINION AND ORDER denying petitioner's 47 MOTION by Scott B. Burgess to Appoint Counsel, without prejudice to the filing of a renewed motion should there be a change of circumstance that makes the need for counsel apparent. Signed by Magistrate Judge Cheryl A. Eifert on 10/6/2020. (cc: petitioner, respondent, counsel of record) (lca)
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.
47). 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. Petitioner has no
constitutional right to counsel in this case. Whether counsel 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
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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, he appears capable of presenting
his arguments at this stage of the proceedings. The state court record has been or will be
produced by the Respondent. The need for an evidentiary hearing is not apparent at this
time. Consequently, the appointment of counsel is not appropriate. Should circumstances
change, or an evidentiary hearing become necessary, the Court will revisit its ruling.
The Clerk is directed to provide a copy of this Order to Petitioner, Respondent, and
counsel of record.
ENTERED: October 6, 2020
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