Ross v. Fluke et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
TRAVIS ROSS,
Petitioner,
vs.
DANIEL SULLIVAN, WARDEN; AND
JASON RAVONSBORG, THE
ATTORNEY GENERAL OF THE STATE
OF SOUTH DAKOTA,
Respondents.
5:21-CV-5045-JLV
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
(DOC. 2) AND DENYING MOTION TO
APPOINT COUNSEL (DOC. 3)
Petitioner, Travis Ross, an inmate at the South Dakota Department of
Corrections in the Mike Durfee State Prison in Springfield, South Dakota, has
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Mr. Ross requests to proceed in forma pauperis (Doc. 2) and requests
appointment of counsel. 	(Doc. 3). 	The matter was referred to this magistrate
judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Chief Judge Jeffrey L.
Viken’s Standing Order dated April 1, 2018.
DISCUSSION
This habeas corpus matter is pending pursuant to 28 U.S.C. § 2254.
“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, the Sixth
Amendment right to counsel applicable in criminal cases does not apply. 	Id.
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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) and 8(c) of the Rules
Governing Section 2254 and 2255 Cases. 	18 U.S.C. § 3006A(a) provides:
(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 who—
. . .
(B) is seeking relief under section 2241, 2254, or 2255 of title
28.
Rules 6(a) and 8(c) provide:
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.
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 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.” 	Id.
In this case, it is unknown whether an evidentiary hearing will be held
because the parties have yet to show whether the petition should be dismissed
for untimeliness. 	At this point, there are no facts or law appearing that would
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support the court’s discretionary appointment of counsel to represent
Mr. Ross. 	Should this change as the case develops, Mr. Ross may file a motion
to appoint counsel.
The court has reviewed Mr. Ross’s motion to proceed in forma pauperis
and prisoner trust account report (Docs. 2, 5). 	Pursuant to the local rule for
the District of South Dakota,
If a habeas corpus petitioner desires to prosecute a petition in forma
pauperis, the petitioner must file an application to proceed in forma
pauperis on a form prescribed by the court (Motion to Proceed
Without Prepayment of Fees and Declaration), accompanied by a
certification 	of 	the 	warden 	or 	other 	appropriate 	officer 	of 	the
institution in which the petitioner is confined as to the amount of
money or securities on deposit for the petitioner. 	If the petitioner
has in excess of $25 on deposit, the petitioner must pay the filing
fee to proceed with a 28 U.S.C. § 2241 or a 28 U.S.C. § 2254 case.
D.S.D. Civ. LR 83.8(B). 	Petitioner filed his Motion to Proceed in Forma
Pauperis (Doc. 2) accompanied with a Prisoner Trust Account Report (Doc. 5)
which has been signed by an authorized officer. 	Petitioner has a current
balance of $31.04 and an average monthly balance of $39.94 in his prisoner
trust account. 	Because Petitioner has in excess of $25 on deposit, as provided
by D.S.D. Civ. LR 83.8(B), Petitioner’s § 2254 habeas case cannot proceed until
he pays the filing fee.
CONCLUSION
Based on the foregoing reasons, it is hereby
ORDERED that Mr. Ross’s motion to appoint counsel (Doc. 3) is denied
without prejudice. 	It is further
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ORDERED that Mr. Ross’s motion to proceed in forma pauperis (Doc. 2)
is denied without prejudice; and
ORDERED that Mr. Ross pay the $5.00 filing fee on or by March 8, 2022,
or his case will not proceed.
NOTICE TO PARTIES
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. 	The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. 	See FED. R. C IV . P.
72(a); 28 U.S.C. ' 636(b)(1)(A). 	Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. 	Id. 	Objections must be
timely and specific in order to require review by the district court. 	Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED this 9th day of February, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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