Neels v. Young et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RONALD LEE NEELS,
Petitioner,
vs.
DARIN YOUNG, BOB DOOLEY,
BRENDA HYDE, WARDEN; AND
ATTORNEY GENERAL FOR THE
STATE OF SOUTH DAKOTA,
sRespondent.
4:22-CV-04053-KES
ORDER DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL
DOCKET NO. 6
This matter is pending before the court pursuant to the pro se petition
pursuant to 28 U.S.C. § 2254 of Ronald Lee Neels, a person incarcerated
pursuant to a judgment of a South Dakota state court. 	See Docket No. 1.
Mr. Neels now moves the court for appointment of counsel and for permission
to proceed without prepayment of fees. 	Docket No. 6.
Mr. Neels previously filed a motion to proceed in forma pauperis, which is
a request to be allowed to proceed without prepayment of fees. 	Docket No. 4.
The court granted that motion. 	Docket No. 7. 	Therefore, the repetition of the
same request in this motion is duplicative. 	Mr. Neel’s second request to
proceed without prepayment of fees is denied as moot because a similar
request has already been granted. 	The court notes that Mr. Neel will still have
to pay to $5.00 filing fee, he is just not required to prepay it as a precondition
of having his case heard. 	See 28 U.S.C. § 1915(a)(1).
Case 4:22-cv-04053-KES Document 8 Filed 05/04/22 Page 1 of 4 PageID #: <pageID>

2
Turning to Mr. Neels’ second request in his motion--for appointment of
counsel--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. Neels 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 court has
discretion to determine whether to appoint counsel.1 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 court may, Ain the interests of justice,@ appoint counsel 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
1 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 (8thCir. 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)). 	A petitioner is entitled to an
evidentiary hearing in federal court only if he shows Aboth cause for failure to
adequately develop the facts in the postconviction state court hearing and
actual prejudice resulting therefrom.@ 	Smith, 998 F.2d at 1442 (citing
McCann, 973 F.2d at 658). 	AA federal court should grant a hearing if the facts
are in dispute or if a fair evidentiary hearing was not conducted in state court.@
Ferguson v. Jones, 905 F.2d 211, 214 (8th Cir. 1990) (citing Wallace v.
Lockhart, 701 F.2d 719, 729 (8th Cir. 1983)).
Case 4:22-cv-04053-KES Document 8 Filed 05/04/22 Page 2 of 4 PageID #: <pageID>

3
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
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).
Here, this court has determined that Mr. Neels’ § 2254 petition is
probably untimely and has issued an order to show cause asking both parties
to address this issue. 	Docket No. 3. 	The court only needs Mr. Neels to state
when he filed his habeas petition in state court and why he waited so long to
do so. 	Appointment of counsel is not necessary for this purpose—he himself
has the unique knowledge to answer the court’s question as to timeliness. 	If
Mr. Neels can show his claim is timely or that equitable tolling should apply,
the court will consider the substance of his petition. 	If it appears that an
evidentiary hearing will be necessary, the court will appoint counsel at
that time.
Case 4:22-cv-04053-KES Document 8 Filed 05/04/22 Page 3 of 4 PageID #: <pageID>

4
Accordingly, it is hereby
ORDERED that Mr. Neels’ motion to appoint counsel and motion to
proceed without prepayment of fees [Docket No. 6] is denied. 	The motion to
appoint counsel is denied because at this juncture of the case counsel is
simply not needed; only facts are needed and Mr. Neels has possession of
those. 	The motion to proceed without prepaying fees is denied as moot
because the court has already granted that remedy.
DATED this 4th day of May, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
Case 4:22-cv-04053-KES Document 8 Filed 05/04/22 Page 4 of 4 PageID #: <pageID>