Buxton v. Ballard

Filing 9

MEMORANDUM OPINION and ORDER directing that Respondent, on or before 10/28/2016, shall answer the 2 Petition as more fully set forth herein; Petitioner may, if he wishes, file a reply to the answer or response of theRespondent within thirty (30) da ys after service of same by the Respondent; denying without prejudice the Petitioner's 3 MOTION for appointment of counsel. Signed by Magistrate Judge Cheryl A. Eifert on 9/16/2016. (cc: WV Attorney General; Petitioner; counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
TERRY L. BUXTON,
Petitioner,
v.

Case No.: 3:16-cv-04489

DAVID BALLARD, Warden,
Mount Olive Correctional Complex
Respondent.
MEMORANDUM OPINION and ORDER
Terry L. Buxton, having filed a Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus (ECF No. 2), and the Clerk having received the $5.00 filing fee from
Petitioner, (ECF No. 8), it is hereby ORDERED that Respondent, on or before October
28, 2016, shall answer the Petition, showing cause, if he has any, why the relief sought
by Petitioner should not be granted. The answer should, insofar as possible, respond to
the issues raised and shall include any available court or other records that
would facilitate determination of the issues. Further, the answer shall include a
paragraph indicating whether or not Petitioner has exhausted his state remedies as
required by 28 U.S.C. § 2254 and whether the petition is timely filed.
Petitioner may, if he wishes, file a reply to the answer or response of the
Respondent within thirty (30) days after service of same by the Respondent. Petitioner
shall, if he files any further documents in this case, mail copies of such documents to
counsel of record for the Respondent with a certificate of service attached.

Also currently pending is Petitioner’s Motion for the Appointment of Counsel,
(ECF No. 3). 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 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 (4th Cir. 1984) (abrogated on other grounds by Mallard v. United States Dist. Court,
490 U.S. 296 (1989)); Hoggard v. Purkett, 29 F.3d 469 (8th Cir. 1994).
Having reviewed the filings made by Petitioner to date, he appears capable of
presenting his arguments. Moreover, the issues have been previously briefed and
addressed in state habeas proceedings, and Petitioner can use those documents to provide
guidance in this action. Finally, the need for an evidentiary hearing is not apparent at this
time. Therefore, the appointment of counsel is not appropriate. However, should
circumstances change, or an evidentiary hearing become necessary, the Court will

reconsider its ruling.
The Clerk is instructed to provide a copy of this Order together with a copy of the
Petition to the Attorney General of the State of West Virginia. The Clerk is further
instructed to provide a copy of this Order to Petitioner and counsel of record.
ENTERED: September 16, 2016