Quinn v. Dooley, No. CIV. 02-1032.

• Decision Date: 07 July 2003
• Docket Number: No. CIV. 02-1032.
• Citation: 272 F.Supp.2d 839
• Parties: Loris QUINN, Petitioner, v. Robert DOOLEY, Warden, South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

272 F.Supp.2d 839

Loris QUINN, Petitioner, v. Robert DOOLEY, Warden, South Dakota State Penitentiary, Respondent.

No. CIV. 02-1032.

United States District Court, D. South Dakota, Northern Division.

July 7, 2003.

COPYRIGHT MATERIAL OMITTED

Plaintiff was Pro Se.

Sherri Sundem Wald, Assistant Attorney General, Pierre, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER OF DISMISSAL

KORNMANN, District Judge.

The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on June 13, 2003, Doc. 13. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636 and petitioner has filed no written objections thereto.

The Court has reviewed the file and finds that the report and recommendation of the magistrate judge should be accepted and the case dismissed.

Now, therefore,

IT IS ORDERED:

1. The report and recommendation of the U.S. Magistrate Judge filed June 13, 2003, Doc. 13, shall be and is hereby adopted as the findings of fact and conclusions of law herein.

2. The petition for writ of habeas corpus is dismissed with prejudice.

REPORT AND RECOMMENDATION FOR DISPOSITION OF HABEAS CORPUS PETITION

MARK, United States Magistrate Judge.

[¶ 1] The above-captioned matter was referred to this Court by the District Court¹ pursuant to 28 U.S.C. 636(b)(1)(B) for the purpose of appointing counsel, conducting any necessary hearings, including evidentiary hearings, and submitting to it proposed findings of fact and recommendations for disposition of the matter.

[¶ 2] After careful review of the records on file, including the state court filings and transcripts in Roberts County Crim. Nos. 00-344 and 01-053, and based on the totality of the circumstances present, the Court does now make and propose the following findings of fact, report and recommendation for disposition in accordance with the District Court's referral Order.

[¶ 3] For convenience, Petitioner, Loris Quinn, will be referred to herein as "Quinn" and Respondent, Robert Dooley, will be referred to as "State".

I.

[¶ 4] Quinn pled guilty to the offense of escape in Roberts County state court and was sentenced on October 30, 2000 to five years of imprisonment, with two years suspended. He did not appeal his conviction to the South Dakota Supreme Court, but did file a petition for habeas relief in state court, which was denied.

[¶ 5] On October 29, 2001, Quinn filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his trial counsel was ineffective in advising him to plead guilty and in failing to investigate whether his conduct fit within the elements of the escape offense. In his petition, he claimed that the reason he did not appeal the denial of his state court petition to the South Dakota Supreme Court was because he was unable to meet the relevant deadline. Ultimately, his § 2254 petition was dismissed without prejudice for failure to exhaust state court remedies.

[¶ 6] On September 18, 2002, Quinn filed a second § 2254 petition, again contending that his trial counsel was ineffective for urging him to enter a guilty plea when his actions did not factually amount to the crime of escape. He maintained in his second petition that he did not appeal the state court's denial of habeas relief because his habeas counsel did not inform him in a timely manner that he had the right to do so.

[¶ 7] The District Court found that Quinn had procedurally defaulted his claims by not presenting them to the state's court of last resort and that Quinn had not shown cause and prejudice to excuse his default.² The Court, however, found that Quinn's second petition did, somewhat inartfully, allege actual innocence which could lift the procedural default. Being unable to find from the face of the petition that summary dismissal was warranted, the Court accordingly required that the State serve and file an answer and supporting memorandum. The State thereafter filed its answer and a brief in support of its request that Quinn's second petition be denied. Quinn then wrote a letter to the District Court requesting that counsel be appointed for him and seeking guidance as to what he should do.

II.

[¶ 8] In September, 2000, Quinn was a prisoner in the Roberts County jail, serving out a misdemeanor sentence and a sentence imposed for an unpaid fine. On September 7, 2000, he requested and was granted a furlough from jail to attend and be a pallbearer at his cousin's funeral. While no exact time was given to him, Quinn was expected to be back at the jail following the funeral service and subsequent meal.³ Quinn left the jail and participated in some of the wake service and grave preparation duties, but began consuming alcoholic beverages and failed to attend the final church service and burial because he was intoxicated. By his own admission, Quinn was not able to resist the temptation of alcohol that was offered to him:

... I went to the funeral and while I was up there I thought I was strong enough and confident in myself enough to turn down alcohol, but with me being in jail, my cousin who I grew up with that got killed and everything, the only way that I knew how to handle that problem at that time was run to the bottle. And when some relatives were up there they had a bottle so I ran to the bottle instead. I should have just came back like I was supposed to, like I was going to, but at that time I didn't think — I thought I could handle the situation.

Arr. Tr. 17 (emphasis added). Quinn failed to return to the jail of his own volition. He described what happened this way:

When I did leave and did drink I was told by the tribal police to come back and I told them I was going to. I started walking back down here to Sisseton and nobody would pick me up, so I used it as an excuse and went and got drunk. When I came to I was in Eden and didn't know what happened or anything else. And I come crawling out of the field and sat up there on the — by the highway. I passed out again and the next thing I know the cops came and picked me up and took me to jail.

Arr. Tr. 18 (emphasis added). Quinn was later arrested and detained in Marshall County two days after being released on the funeral furlough. It was not until 2:00 p.m. on September 14, 2000 that Quinn finally returned to the jail.

[¶ 9] Quinn was charged with escape and counsel was appointed to represent him. Quinn admitted to his counsel that he had consumed alcohol and failed to return to the jail. Counsel believed that Quinn's voluntary intoxication would not provide a viable defense to the escape charge.⁴ Based on this advice, Quinn pled guilty to the charge on October 12, 2000. During his allocution, Quinn apologized to the trial court, the prosecutor and Long for his actions and "for not coming back when I was supposed to." Arr. Tr. 18. The trial court found that Quinn's plea was a knowing, voluntary and intelligent one and that a factual basis existed for the same. On October 30, 2000, Quinn was sentenced to a term of imprisonment at the state penitentiary.

III.

[¶ 10] Quinn has requested that he be appointed counsel, presumably under the Criminal Justice Act, 18 U.S.C. § 3006A, to assist him with his § 2254 petition.

[¶ 11] Initially, it must be observed that there is no constitutional right to counsel in habeas actions. Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir.1995); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.1994). A habeas corpus proceeding is civil in nature and "the Sixth Amendment's right to counsel afforded for criminal proceedings does not apply." Hoggard, 29 F.3d at 471 (quoting Boyd v. Groose, 4 F.3d 669, 671 (8th Cir.1993)).

[¶ 12] A court, however, may appoint counsel for a prisoner seeking habeas relief "when the interests of justice so require." § 3006A(a)(2)(B); see also Hoggard, 29 F.3d at 471. If the court decides to hold an evidentiary hearing, the interests of justice require that counsel be appointed. Hoggard, 29 F.3d at 471. Rule 8(c) of the Rules Governing § 2254 Cases ("Habeas Rules"). If no evidentiary hearing is necessary, the appointment of counsel is discretionary. Hoggard, 29 F.3d at 471.

[¶ 13] In exercising its discretion, a court should first determine whether a pro se habeas prisoner has presented a non-frivolous claim. Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.), cert. denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994). If the prisoner has presented only claims that are frivolous or are clearly without merit, the court should dismiss the case on the merits without appointing counsel. Id.; Rule 4 of the Habeas Rules. If the prisoner has presented a non-frivolous claim, the court should then determine, whether given the particular circumstances of the case, the appointment of counsel would benefit the prisoner and the court to such an extent that "the interests of justice so require" it. Nachtigall, 48 F.3d at 1081; Abdullah, 18 F.3d at 573. In determining whether the appointment of counsel is required for a prisoner seeking habeas relief with non-frivolous claims, the court should consider the factual and legal complexities of the case, the prisoner's ability to investigate and present claims, the existence of conflicting testimony, and any other relevant factors. Nachtigall, 48 F.3d at 1081-82; Hoggard, 29 F.3d at 471; Abdullah, 18 F.3d at 573.

[¶ 14] Applying these factors to the case at hand, this Court concludes that the interests of justice do not require the appointment of counsel. The claims Quinn raises in his second petition, while not frivolous or plainly devoid of any colorable merit on their face, see Bouie v. City of Columbia, 378 U.S. 347, 349-63, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); Davis v. Nebraska, 958 F.2d 831, 833-36 (8th Cir. 1992); Moore v. Wyrick, 766 F.2d 1253, 1254-61 (8th Cir.1985), cert. denied, 475 U.S. 1032, 106 S.Ct. 1242, 89 L.Ed.2d 350 (1986),...