Burgess v. Ballard, No. 2:2016cv10949 - Document 20 (S.D.W. Va. 2017)
Court Description: 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)
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Burgess v. Ballard Doc. 20 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 SCOTT B. BU RGESS, Pe titio n e r, v. Cas e N o . 2 :16 -cv-10 9 4 9 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 Currently pending is Petitioner’s Motion for the Appointm ent of Counsel, (ECF No. 5). For the following reasons, the court D EN IES Petitioner’s Motion, without prejudice to the filing of a renewed m otion should there be a change of circum stance that m akes the need for counsel apparent. The Crim inal J ustice Act (“CJ A”), 18 U.S.C. § 30 0 6A, 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 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). This standard is sim ilar to the one applied in determ ining whether to appoint counsel in civil actions governed by 28 U.S.C. § 1915(e)(1), which states that the appointm ent 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 1 Dockets.Justia.com should be appointed depends upon several factors, including (1) the type and com plexity of the case; (2) the ability of the litigant 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 (1989)) (holding that the appointm ent 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 circum stances.”); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (holding that “[t]he appointm ent of counsel is discretionary when no evidentiary hearing is necessary.”); and Brow n v. Virginia, No. 1:10 CV162 J CC/ IDD, 20 11 WL 1897432, at *10 (E.D. Va. May 18, 20 11) (“Rule 6(a) of the Rules Governing § 2254 Cases in the United States District Courts provides that a court m ay appoint counsel if it is “necessary for effective utilization of discovery procedures,” and Rule 8(c) m andates that counsel be appointed only “[i]f an evidentiary hearing is required.”). Having reviewed the filings m ade by Petitioner to date, he appears fully capable of presenting his argum ents at this stage of the proceedings. The prelim inary 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 appointm ent of counsel is not appropriate at this tim e. However, should circum stances change, or an evidentiary hearing becom e necessary, the court will reconsider its ruling. 2 The Clerk is directed to provide a copy of this Order to Petitioner, Respondent, and counsel of record. EN TERED : April 18, 20 17 3
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