Ballard v. Nebraska Department of Corrections

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KEVIN L. BALLARD,
Petitioner,
vs.
ROB JEFFREYS,
Respondent.
8:25CV547
MEMORANDUM AND ORDER
This matter is before the Court on a motion for appointment of counsel
(the “Motion to Appoint Counsel”), Filing No. 10, and a motion for copies (the
“Motion for Copies”), Filing No. 11, filed by Petitioner Kevin L. Ballard
(“Petitioner”). For the reasons that follow, the Motion for Copies shall be
granted but the Motion to Appoint Counsel shall be denied without prejudice.
I. MOTION FOR COPIES
In his Motion for Copies Petitioner, who is proceeding in forma pauperis,
see Filing No. 8, seeks a copy of his September 9, 2025, Petition, Filing No. 11.
He contends that because he is incarcerated, he must handwrite all legal
documents, and it is nearly “impossible” for him to obtain copies. Id. at 1. He
seeks a copy of his Petition so that he can accurately respond to any responsive
pleadings filed by Respondent. Id.
As an initial matter, the fact that Petitioner was allowed to proceed in
forma pauperis does not entitle him to receive copies of documents without
payment. 28 U.S.C. § 1915; see also Haymes v. Smith, 73 F.R.D. 572, 574
(W.D.N.Y. 1976) (“The generally recognized rule is that a court may not
authorize the commitment of federal funds to underwrite the necessary
expenditures of an indigent civil litigant’s action.”) (citing Tyler v. Lark, 472
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F.2d 1077, 1078 (8th Cir. 1973)). However, as this is Petitioner’s first request,
the Court shall grant Petitioner’s Motion for Copies and shall instruct the
Clerk’s Office to send a file-stamped copy of Filing No. 1 to Petitioner.
The Court warns Petitioner that no further motions for copies shall be
granted. Instead, if Petitioner requires additional copies of court documents,
he should contact the clerk’s office to determine the proper method of
requesting and paying for copies. See NEGenR 1.3(a)(1)(A)(iii) (“Paper and
certified copies of electronically filed documents may be purchased from the
clerk for a fee collected under 28 U.S.C. § 1914.”).
II. MOTION TO APPOINT COUNSEL
Petitioner seeks appointment of counsel arguing that appointment is
appropriate as he is unable to pay for private counsel and as Petitioner is
concerned that due to the individuals and issues involved in his Petition that
he will be stripped of access to the law library or other legal resources in
retaliation for filing his Petition. Filing No. 10. “[T]here is neither a
constitutional nor statutory right to counsel in habeas proceedings; instead,
[appointment] is committed to the discretion of the trial court.” McCall v.
Benson, 114 F.3d 754, 756 (8th Cir. 1997). As a general rule, counsel will not
be appointed unless the case is unusually complex or the petitioner’s ability to
investigate and articulate the claims is unusually impaired or an evidentiary
hearing is required. See, e.g., Morris v. Dormire, 217 F.3d 556, 558–59 (8th Cir.
2000), cert. denied, 531 U.S. 984 (2000); Hoggard v. Purkett, 29 F.3d 469, 471
(8th Cir. 1994). See also Rule 8(c) of the Rules Governing Section 2254 Cases in
the United States District Courts (requiring appointment of counsel if an
evidentiary hearing is warranted).
The Court finds there is no need for the appointment of counsel at this
at this early state of the proceedings as Respondent has not yet filed a response
to the Petition, therefore the Court cannot yet ascertain the potential
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complexities of the case. Moreover, Petitioner complains not of a lack of access
to legal materials currently, but a potential loss of access in the future.
Appointing counsel to prevent a purely hypothetical issue is inappropriate.
The Motion to Appoint Counsel, Filing No. 10, shall therefore be denied
without prejudice. The Court will, however, “continue to be alert to the
possibility that, because of procedural complexities or other reasons, later
developments in the case may show either that counsel should be appointed,
or that strict procedural requirements should, in fairness, be relaxed to some
degree.” Williams v. Carter, 10 F.3d 563, 567 (8th Cir. 1993).
IT IS THEREFORE ORDERED that:
1. Petitioner’s Motion for Copies, Filing No. 11, is granted to the extent
Petitioner seeks copies of his Petition, Filing No. 1.
2. Petitioner’s Motion to Appoint Counsel, Filing No. 10, is denied
without prejudice.
3. The Clerk’s Office is instructed to provide Petitioner a copy of Filing
No. 1.
Dated this 29th day of October, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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