Mayen v. Fluke et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PETER MAYEN,
Petitioner,
vs.
WARDEN 	FLUKE, JASON
RAVENSBORG, THE ATTORNEY
GENERAL OF THE STATE OF SOUTH
DAKOTA;
Respondents.
4:21-CV-04145-KES
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
Docket No. 4
This matter is pending before the court on the pro se petition for habeas
relief pursuant to 28 U.S.C. § 2254 filed by Peter Mayen, an inmate at the Mike
Durfee State Prison in Springfield, South Dakota. 	Docket No. 1. 	Mr. Mayen
has filed a motion seeking appointment of counsel to represent him at the
court’s expense. 	Docket No. 4.
“There is no recognized constitutional right under the Sixth Amendment
for the appointment of counsel in habeas corpus cases.” 	Hoggard v. Purkett,
29 F.3d 469, 471 (8th Cir. 1994). 	Because a habeas action is civil in nature,
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the Sixth Amendment right to counsel applicable in criminal proceedings does
not apply. 	Id.
The statutory basis for the appointment of counsel in a habeas case is
found at 18 U.S.C. § 3006A(a)(2)(B) and Rules 6(a) & 8(c), Rules Governing
Section 2254 Cases in United States District Courts, 28 U.S.C. foll. § 2254.
Those statutes provide in relevant part:
18 U.S.C. ' 3006A(a)(2)(B):
(2) 	Whenever the United States magistrate judge or
the court determines that the interests of justice
so require, representation may be provided for
any financially eligible person whoB
**
(B) is seeking relief under section 2241, 2254, or
2255 of title 28
Rule 6(a):
If 	necessary 	for 	effective 	discovery, 	the 	judge 	must
appoint an attorney for a petitioner who qualifies to
have counsel appointed under 18 U.S.C. ' 3006A.
Rule 8(c):
If an evidentiary hearing is warranted, the judge must
appoint 	an 	attorney 	to 	represent 	a 	petitioner 	who
qualifies to have counsel appointed under 18 U.S.C. '
3006A . . . 	These rules do not limit the appointment of
counsel under ' 3006A at any stage of the proceeding.
The appointment of counsel in a habeas case is discretionary when no
evidentiary hearing is necessary. 	Hoggard, 29 F.3d at 471 (citations omitted).
In this case, it has not yet been decided whether an evidentiary hearing is
warranted.
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“In exercising its discretion, the district court should consider the legal
complexity of the case, the factual complexity of the case, and the petitioner’s
ability to investigate and present his claims, along with any other relevant
factors.” 	Id. 	Most importantly, “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.”
Here, as indicated by the court’s order to show cause filed this same
date, it appears Mr. Mayen’s petition may be time-barred. 	Accordingly, it is
hereby
ORDERED that Mr. Mayen’s motion for appointment of counsel [Docket
No. 4] is denied. 	Should the court determine at a later date that an evidentiary
hearing will be necessary in this case, the court will appoint counsel to
represent Mr. Mayen at that point.
DATED this 18th day of August, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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