Iron Shell v. Warden, Mike Durfee State Prison et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JERED IRON SHELL,
Petitioner,
vs.
BRENT FLUKE, WARDEN, MIKE
DURFEE STATE PRISON; and
ATTORNEY GENERAL OF SOUTH
DAKOTA, and LINCOLN COUNTY,
Respondents.
5:21-CV-05050-KES
ORDER DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL
DOCKET NO. 10
INTRODUCTION
Petitioner, Jered Iron Shell, an inmate in the Mike Durfee State
Penitentiary, has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. 	The pending matter was referred to the magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order
of the Honorable Karen E. Schreier, United States District Court Judge.
Pending before this court is Mr. Iron Shell=s motion to appoint legal counsel to
assist in his pursuit of federal habeas corpus relief. 	Docket No. 10.
It is well settled that A[a] habeas corpus proceeding is civil in nature, and
>the Sixth Amendment right to counsel afforded for criminal proceedings does
not apply.= @ 	Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (citing Boyd
v. Groose, 4 F.3d 669, 671 (8th Cir. 1993)). 	Because Mr. Iron Shell has no
constitutional right to appointment of counsel in his habeas proceeding (see
Phelps v. United States, 15 F.3d 735, 737 (8th Cir. 1994)), the district court
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has discretion to determine whether to appoint counsel. 	Sullivan v. Lockhart,
958 F.2d 823, 826 (8th Cir. 1992) (citing Ferguson, 905 F.2d at 213-214).
Refusal by the court to appoint counsel to assist petitioner in presenting a
federal habeas corpus petition does not violate petitioner=s constitutional
rights. 	Hull v. Swenson, 431 F.2d 1194, 1195 (8th Cir. 1970). 	A district court
must appoint counsel to represent petitioner in any evidentiary hearings
deemed necessary by the court. 	Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.
1994) (citing Rules Governing ' 2254 Cases, Rule 8(c), 28 U.S.C.A. foll. ' 2254).
An evidentiary hearing is not necessary when Athe issues involved can be
properly resolved on the basis of the state court record.@ 	Smith v. Groose, 998
F.2d 1439, 1442 (8th Cir. 1993) (citing McCann v. Armontrout, 973 F.2d 655,
661 (8th Cir. 1992)).
When it is discretionary, a court may, Ain the interests of justice,@
appoint representation to any financially eligible person who is seeking relief
under 28 U.S.C. ' 2254. 	18 U.S.C. ' 3006A(a)(2)(B). 	The Eighth Circuit has
set forth the following standard with regard to discretionary appointments of
counsel for pro se habeas petitioners:
When exercising its discretion, a district court should first
determine whether a pro se habeas petitioner has presented a
nonfrivolous claim. 	If the petitioner has presented only claims that
are frivolous or clearly without merit, the district court should
dismiss the case on the merits without appointing counsel. 	If the
petitioner has presented a nonfrivolous claim, the district court
should then determine whether, given the particular
circumstances of the case, the appointment of counsel would
benefit the petitioner and the court to such an extent that Athe
interests of justice so require@ it. 	To determine whether
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appointment of counsel is required for habeas petitioners with
nonfrivolous claims, a district court should consider the legal
complexity of the case, the factual complexity of the case, the
petitioner=s ability to investigate and present [articulate] his claim,
and any other relevant factors.
Abdullah, 18 F.3d at 573 (internal citations omitted); see also McCall v.
Benson, 114 F.3d 754, 756 (8th Cir. 1997); Battle v. Armontrout, 902 F.2d
701, 702 (8th Cir. 1990).
Based on this court’s initial screening of Mr. Iron Shell’s case (as
reflected in the order to show cause filed this same date), it appears Mr. Iron
Shell’s federal petition is time-barred. 	As such, the only matters Mr. Iron Shell
needs to explain at present are the dates upon which events in his underlying
state proceedings took place and why he waited so long to file his state habeas
petition. 	Those are matters Mr. Iron Shell can address without the aid of
counsel. 	Accordingly, it is
ORDERED that Mr. Iron Shell’s motion for appointment of counsel
[Docket No. 10] is denied without prejudice.
DATED April 20, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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