Walton v. Ballard, No. 2:2015cv11423 - Document 19 (S.D.W. Va. 2015)
Court Description: 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)
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Walton v. Ballard Doc. 19 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON D IVISION TON Y J. W ALTON , Pe titio n e r, v. Cas e N o . 2 :15-cv-114 2 3 D AVID BALLARD , W ard e n , Mt. Olive Co rre ctio n al Co m p le x, Re s p o n d e n t. MEMORAN D U M OPIN ION an d ORD ER Pending before the Court is Petitioner’s Motion for Appointm ent of Counsel and Motion for Evidentiary Hearing, (ECF No. 2). Petitioner requests that the Court appoint him counsel for “discovery purposes” and asserts that appointm ent 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 claim s 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 crim e scene should occur before any evidentiary hearing, so that the results m ay be produced at the hearing. (Id.) In regard to Petitioner’s request for appointm ent of counsel, the law is well-settled that a habeas petitioner has no constitutional right to counsel. Pennsy lvania v. Finley , 481 U.S. 551, 555, 10 7 S.Ct. 1990 , 95 L.Ed.2d 539 (1990 ). The Crim inal J ustice Act, 18 U.S.C. § 30 0 6A, authorizes the United States District Court to appoint counsel to represent financially eligible individuals in actions brought pursuant to 28 U.S.C. § 2254, 1 Dockets.Justia.com “whenever the United States m agistrate judge or the court determ ines that the interests of justice so require.” 18 U.S.C. § 30 0 6A(a)(2)(B). An analogous standard is set forth in 28 U.S.C. § 1915(e)(1), which governs the appointm ent of counsel for indigent litigants in civil actions. In both circum stances, the m atter 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 circum stances.” See, e.g., Rice v. Riley , No. 4:13– 30 49– TMC, 20 14 WL 5524461, at *1 (D.S.C. Oct. 31, 20 14). When determ ining whether to appoint counsel, the court should consider several factors, including (1) the type and com plexity of the case; (2) the ability of the petitioner to adequately investigate and present his claim ; (3) the likelihood of success on the m erits of the application; and (4) the apparent need for an evidentiary hearing in order to resolve the case. See, e.g., W hisenant 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, 10 9 S.Ct. 1814, 10 4 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 appointm ent of counsel is discretionary when no evidentiary hearing is necessary. In exercising its discretion, the district court should consider the legal com plexity of the case, the factual com plexity of the case, and the petitioner's ability to investigate and present his claim s, 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 docum ents to provide guidance in this action. Moreover, Petitioner appears capable of presenting of his 2 argum ents as he has adequately briefed his claim s in his num erous pro se filings. In addition, at this juncture, the grounds asserted by Petitioner do not m erit an evidentiary hearing. Accordingly, because Petitioner fails to dem onstrate exceptional circum stances that justify the appointm ent of counsel, the undersigned D EN IES his request for appointm ent of counsel. As for Petitioner’s request for an evidentiary hearing, the Suprem e 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 (20 0 7). 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, m ade retroactive to cases on collateral review by the Suprem e 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 som e greater fault, attributable to the prisoner or the prisoner's counsel.” W illiam s v. Tay lor, 529 U.S. 420 , 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (20 0 0 ). “Diligence for purposes of the opening 3 clause [of § 2254(e)(2)] depends upon whether the prisoner m ade a reasonable attem pt, in light of the inform ation available at the tim e, to investigate and pursue claim s 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.” W olfe v. Johnson, 565 F.3d 140 , 167 (4th Cir. 20 0 9) (quoting W illiam s, 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 enum erated by the Suprem e Court in Tow nsend v. Sain, [372 U.S. at 313].’”1 W olfe, 565 F.3d at 168-69 (quoting Conaw ay v. Polk, 453 F.3d 567, 582 (4th Cir.20 0 6)). 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. 5:0 5-cv-0 0 765, 20 0 9 WL 1543915, at *7 (S.D.W.Va. May 29, 20 0 9) (quoting Schriro, 550 U.S. at 474). Furtherm ore, the Fourth Circuit has recognized that in § 2254 cases, “‘federal evidentiary hearings ought to be the exception, not the rule.’” W inston v. Kelly , 592 F.3d 535, 552 (4th Cir. 20 10 ) (quoting Pike v. Guarino, 492 F.3d 61, 70 (1st Cir. 20 0 7)). 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 1 The Supreme Court held in Tow nsend that a federal court m ust grant an evidentiary hearing to a habeas petitioner if: “(1) the m erits of the factual dispute were not resolved in the state hearing; (2) the state factual determ ination is not fairly supported by the record as a whole; (3) the fact-finding procedure em ployed 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 m aterial 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. 4 court is “lim ited to the record that was before the state court that adjudicated the claim on the m erits.” Cullen v. Pinholster, _ _ _ U.S. _ _ _ , 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (20 11). In this case, Petitioner has yet to provide any evidence or argum ent that would lead the Court to conclude that further factual developm ent of his claim s at an evidentiary hearing is required. For instance, Petitioner claim s 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 testim ony, or supply their affidavits. Without that inform ation, the Court cannot determ ine whether Petitioner m eets the standard for § 2254(e)(2) or, if § 2254(e)(2) is inapplicable, whether Petitioner m eets the requirements for an evidentiary hearing described in W olfe. Consequently, the undersigned D EN IES Petitioner’s request for an evidentiary hearing, w ith o u t p re ju d ice to Petitioner’s ability to refile a motion for an evidentiary hearing in light of the standards set forth above. For the aforem entioned reasons, Petitioner’s Motion for Appointm ent of Counsel and Motion for Evidentiary Hearing, (ECF No. 2), is D EN IED . The Clerk is instructed to transm it a copy of this Order to Petitioner and counsel of record. EN TERED : Decem ber 9, 20 15 5
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