Butler (ID 2000152231) v. Geither

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICHARD CHANTEZ BUTLER,
Petitioner,
v.
GLORIA GEITHER,
Respondent.
Case No. 25-cv-3280-DDC-JBW
MEMORANDUM AND ORDER
Petitioner Richard Chantez Butler, a state prisoner currently incarcerated at Lansing
Correctional Facility proceeding pro se and in forma pauperis, initiated this action by filing a
petition for federal habeas relief under 28 U.S.C. § 2254. The Court has completed its preliminary
review of Petitioner’s amended petition (Dkt. 9) as required by Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts (“the Habeas Rules”)1 and set a deadline
for Respondent to file an answer. In response, Petitioner filed a third motion for appointment of
counsel (Dkt. 39). As explained below, the motion is denied without prejudice.
I. 	Background
On December 31, 2025, Petitioner filed a petition for writ of habeas corpus (Dkt. 1)
challenging his convictions and 543-month sentence imposed by the Atchison County, Kansas
District Court following jury trial in March 2020. Petitioner also filed a motion for appointment
of counsel (Dkt. 4). On January 6, 2026, the Court denied the motion without prejudice, finding
the interest of justice did not require appointment of counsel for Petitioner at the preliminary stage
1 28 U.S.C. foll. § 2254.
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of this habeas proceedings (Dkt. 6). The Court advised Petitioner that he could renew his request
if the case survived initial screening and developed in a manner warranting counsel, such as if
discovery were authorized or an evidentiary hearing became necessary.2
Petitioner filed a second motion for appointment of counsel on June 9, 2026 (Dkt. 34). The
Court, noting it had not yet concluded its review of the amended petition, denied the second motion
without prejudice on June 10, 2026 (Dkt. 35). The Court again concluded the interests of justice
did not require appointment of counsel for Petitioner. It also found Petitioner so far appeared
capable of presenting relevant facts and legal arguments and the issues in this matter did not appear
overly complex. Petitioner was again advised if this case develops in a way that requires counsel,
he may renew his motion.
On June 22, 2026, the Court entered an order (Dkt. 37) stating that it had completed its
review of the amended petition under Habeas Rule 4. It dismissed Ground Seven of the amended
petition and ordered Respondent to file an answer on or before August 24, 2026 showing why the
writ should not be granted based on the arguments in Grounds One through Six of the amended
petition. Petitioner filed his third motion for appointment of counsel on June 29, 2026. 3
II. 	Legal Standard for Appointing Counsel in Federal Habeas Action
The court may appoint counsel in a federal habeas action under 18 U.S.C. § 3006A(a)(2)(B)
if it “determines that the interests of justice so require.”4 However, there is no constitutional right
2 See Order (Dkt. 6) at 3 (referencing Rules 6, 7, and 8 of the Rules Governing Section 2254 Cases
in the United States District Courts, 28 U.S.C.A. foll. § 2254 (discussing discovery, expansion of the record,
and evidentiary hearings)).
3 The motion was referred to the undersigned Magistrate Judge on July 16, 2026 (Dkt. 40).
4 See 18 U.S.C. § 3006A(a)(2)(B) (representation may be provided for any financially eligible
person seeking relief under section 28 U.S.C. § 2254 if the court determines that the “interests of justice so
require”).
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to counsel in a federal habeas corpus action beyond the direct appeal of a criminal conviction.5 In
most Section 2254 proceedings, the appointment of counsel is left to the court’s discretion.6 In
exercising that discretion when deciding whether to appoint counsel, the court considers the
following factors: “the merits of a prisoner’s claims, the nature and complexity of the factual and
legal issues, and the prisoner’s ability to investigate the facts and present his claims.”7 The
petitioner bears the burden to convince the court there is sufficient merit to his claim to warrant
the appointment of counsel.8
The court’s discretion is not without limit. Habeas Rule 8(c) provides “[i]f 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.” 9 The Tenth Circuit has made clear that once a
district court determines that an evidentiary hearing is required, appointment of counsel is
mandatory—not 	discretionary.10 	Thus, 	until 	an 	evidentiary 	hearing 	is 	deemed 	necessary,
appointment remains within the court’s sound discretion; once a hearing is required, however,
counsel must be appointed for a qualifying petitioner.11
5 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Swazo v. Wyoming Dep’t of Corr. State
Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994) (“We agree with the district court to the extent that
there is no constitutional right to counsel beyond the appeal of a criminal conviction . . .”).
6 Swazo, 23 F.3d at 333; Smith-Parker v. Schnurr, No. 25-3095-DDC-BGS, 2026 WL 621073, at
*2 (D. Kan. Mar. 5, 2026).
7 Steffey v. Orman, 461 F.3d 1218, 1224 (10th Cir. 2006) (citing Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1115 (10th Cir. 2004)).
8 McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (citing United States v. Masters, 484
F.2d 1251, 1253 (10th Cir. 1973)).
9 28 U.S.C. foll. § 2254.
10 Swazo, 23 F.3d at 333–34.
11 See id.
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Accordingly, in evaluating a motion to appoint counsel in a habeas proceeding, the court
first determines whether an evidentiary hearing is required under Habeas Rule 8(c).12 If so, and if
the petitioner qualifies under 18 U.S.C. § 3006A, the court must appoint counsel.13 If no
evidentiary hearing is required, the court applies the discretionary factors in determining whether
the interests of justice warrant appointment.
III. 	Petitioner’s Third Motion for Appointment of Counsel
At this stage, the Court has not made a determination whether an evidentiary hearing is
required under Habeas Rule 8(a), so the mandatory-appointment provision of Habeas Rule 8(c)
does not apply. The Court has completed its Habeas Rule 4 review of Petitioner’s amended habeas
petition and ordered Respondent to file answer on or before August 24, 2026 addressing, among
other things, “the necessity for an evidentiary hearing on Grounds One through Six as alleged in
the second amended petition.”14 Respondent has also been ordered to forward records and
transcripts, if available, of the criminal proceedings complained of by Petitioner and furnish the
records of the appeal proceedings and any subsequent postconviction proceedings. Petitioner has
until September 24, 2026 to file a traverse, or response, to the answer, admitting or denying, under
oath, all factual allegations contained therein. After the answer, the relevant state-court records,
and the traverse—Petitioner’s response to the answer—are filed, the Court will consider whether
an evidentiary hearing is necessary.15 Only if the district judge concludes that further factual
12 Smith-Parker, 2026 WL 621073, at *3.
13 Id.
14 June 22, 2026 Mem. & Order (Dkt. 37) at 6.
15 See Habeas Rule 8(a), 28 U.S.C. foll. § 2254 (“If the petition is not dismissed, the judge must
review the answer, any transcripts and records of state-court proceedings, and any materials submitted
under Rule 7 to determine whether an evidentiary hearing is warranted.”)
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development is warranted may the Court authorize discovery or set an evidentiary hearing, subject
to the limitations of 28 U.S.C. § 2254(e)(2). Because the mandatory-appointment provision does
not apply, the Court turns to whether discretionary appointment of counsel is warranted.16
The Court finds the factors for discretionary appointment weigh against appointing counsel
for Petitioner at this time. First, regarding the merits of Petitioner’s case, “[t]he burden is on the
applicant to convince the court that there is sufficient merit to his claim to warrant the appointment
of counsel.”17 Petitioner’s two-page motion offers little to convince the Court on this factor. The
Court has ordered Respondent to file an answer showing why the writ should not be granted based
on Petitioner’s arguments in Grounds One through Six of the amended petition. Petitioner’s
arguments on these Grounds can be summarized as: (1) insufficient evidence supported the
aggravated kidnapping conviction; (2) the three rape convictions and the two aggravated criminal
sodomy convictions are multiplicitous; (3) the state committed reversible prosecutorial error
during closing argument; (4) the trial court erred in summarily denying the motion for new trial
based on ineffective assistance of counsel; (5) cumulative trial errors; and (6) reliance during
sentencing on criminal history not proven to a jury beyond a reasonable doubt.18 The Court notes
that many of these same arguments were raised by Petitioner in his direct appeal.19 The Kansas
16 See Habeas Rule 8(c) (“These rules do not limit the appointment of counsel under § 3006A at
any stage of the proceeding.”).
17 Hill, 393 F.3d at 1115 (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
18 See Am. Pet. (Dkt. 9) at 2.
19 Petitioner argued in his direct appeal that a charge of aggravated kidnapping was not supported
by sufficient evidence, the three convictions of rape and two convictions of aggravated criminal sodomy
are multiplicitous, the State committed prosecutorial error during closing argument, the trial court erred in
denying his motion for a new trial, and his right to a jury trial were violated when it included prior
convictions in calculating his prison sentence. See State v. Butler, 515 P.3d 754 (Kan. Ct. App. 2022)
(unpublished), rev’d, 317 Kan. 605, 533 P.3d 1022 (2023).
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Supreme Court ultimately rejected Petitioner’s arguments and affirmed the district court’s
judgment.20 Petitioner also filed a motion in state district court seeking state habeas relief under
K.S.A. 60-1507. The district court denied relief and the Kansas Court of Appeals affirmed the
denial.21 The merits factor does not support discretionary appointment of counsel at this time.
The second factor is the nature and complexity of the factual and legal issues. Petitioner
does not identify any novel constitutional theory, unusually intricate fact dispute, or need for
technical or scientific evidence that would render the issues unusually complex. Nor does the case
presently involve discovery or evidentiary development. While habeas litigation is undoubtedly
challenging for a pro se litigant, the claims asserted here are neither factually nor legally
extraordinary. Accordingly, the second factor does not weigh in favor of appointing counsel at this
stage.
The third factor the Court considers is Petitioner’s capacity to prepare and present the case
without the aid of counsel.22 In considering this factor, the Court must look to the Petitioner’s
ability to gather and present crucial facts as well as the complexity of the case.23 Petitioner
commenced this case pro se in December 2025, following the denial of his pro se motion in state
district court seeking state habeas relief under K.S.A. 60-1507 and after the Kansas Supreme Court
affirmed the trial court’s judgment on direct appeal. Throughout his direct appeal, state habeas
20 State v. Butler, 317 Kan. 605, 612, 533 P.3d 1022, 1027 (2023). On direct appeal, the Kansas
Court of Appeals vacated the aggravated kidnapping conviction for insufficient evidence, but the Kansas
Supreme Court reversed that holding and reinstated the conviction. Id.
21 See Butler v. State, 565 P.3d 296, 2025 WL 733370 (Kan. Ct. App. Mar. 7, 2025) (unpublished),
rev. denied July 31, 2025.
22 Steffey, 461 F.3d at 1224.
23 Smith-Parker, 2026 WL 621073, at *4.
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proceedings, and in this proceeding to date, Petitioner has demonstrated his ability to gather facts
and present his claims and arguments in his pleadings and other filings. Petitioner has filed multiple
pleadings in this matter responsive to the Court’s orders and which articulate the factual basis of
his claims and cite relevant constitutional provisions. Through his own efforts to date without
counsel, Grounds One through Six of Petitioner’s amended petition have passed the Court’s
screening under Habeas Rule 4. This shows Petitioner has the capacity to present relevant facts
and legal arguments without the aid of counsel. Petitioner has not alleged any special
circumstances that would lead the Court to conclude that he is not capable of continuing to proceed
on his own behalf or set his case apart from other incarcerated individuals proceeding pro se in
federal court. Accordingly, the third factor does not weigh in favor of discretionary appointment
of counsel.
After considering all the relevant factors, the Court exercises its discretion and finds no
basis to appoint counsel at this stage of the proceedings. Petitioner’s claims are neither unusually
factually or legally complex and he appears fully capable of continuing to represent himself
without counsel in this proceeding. Although Petitioner is not an attorney and appointed counsel
might present his arguments more effectively, that does not distinguish him from the many pro se
litigants who pursue habeas relief in federal court.24 On balance, the Court concludes that the
factors weigh against discretionary appointment of counsel at this time.
IT IS THEREFORE ORDERED that Petitioner’s third Motion for Appointment of
Counsel (Dkt. 39) is denied without prejudice.
IT IS FURTHER ORDERED that a paper copy of this Memorandum and Order will be
24 See Abu-Fakher v. Bode, 175 F. App’x 179, 185 (10th Cir. 2006).
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mailed to Petitioner at the address provided in his motion. An electronic notice of filing (NEF)
will be emailed to the Lansing Correctional Facility’s court file email address.
IT IS SO ORDERED.
Dated July 29, 2026, at Kansas City, Kansas.
Jennifer B. Wieland
U. S. Magistrate Judge
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