Huston v. Frakes ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA DALLAS L. HUSTON, Petitioner, 8:20CV20 vs. MEMORANDUM AND ORDER SCOTT R. FRAKES, Respondent. This matter is before the court on Petitioner’s motion to appoint counsel. (Filing 15.) “[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 has carefully reviewed the record and finds there is no need for the appointment of counsel at this time. IT IS THEREFORE ORDERED that: 1. Petitioner’s motion to appoint counsel (filing 15) is denied without prejudice to reassertion. 2. Petitioner is advised that he has until August 5, 2020 to file and serve a brief in opposition to Respondent’s motion for summary judgment. Dated this 24th day of July, 2020. BY THE COURT: Kichird G. Avy Richard G. “ Senior United States District Judge