stating that “a federal convict filing a motion under § 2255 is not entitled, as a matter of constitutional right, to have court-appointed counsel in the preparation and presentation of such a motion in the District Court or the Court of Appeals”
How later courts described this case
- stating that “a federal convict filing a motion under § 2255 is not entitled, as a matter of constitutional right, to have court-appointed counsel in the preparation and presentation of such a motion in the District Court or the Court of Appeals”
- stating that it has never “been held that there is a constitutional right to counsel in a habeas action” and that appointment of counsel is reviewed “for abuse of discretion”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ZERAK BROWN, )
)
Movant, )
)
v. ) No. 1:25-cv-00027-SNLJ
)
UNITED STATES OF AMERICA, )
)
Respondent. )
MEMORANDUM AND ORDER
This 28 U.S.C. § 2255 habeas matter is before the Court upon multiple motions filed
by movant Zerak Brown, including a “Motion and Affidavit to Proceed in District Court
Without Prepaying Fees or Costs,” a motion for appointment of counsel, and a motion for
an evidentiary hearing. ECF Nos. 3 & 5-6. For the reasons discussed below, these motions
will be denied without prejudice. A Case Management Order will issue separately in this
matter.
Motion to Proceed Without Prepayment
Because there is no filing fee for a § 2255 habeas case, Brown need not be granted
in forma pauperis status in order to maintain this action. See Rule 3, Advisory Committee
Notes of the Rules Governing Section 2255 Proceedings. Thus, to the extent that Brown
is seeking leave to initiate this action in forma pauperis in order to avoid prepaying the
filing fee, this request is moot. A review of the file indicates that Brown may be filing this
motion for a determination of his pauper status for other reasons, like his pending motion
for appointment of counsel. However, Brown does not state as much in his motion. As
discussed below, Brown’s motion for appointment of counsel will be denied for different
reasons. As such, a determination of Brown’s indigency status is not required at this time.
Brown’s motion to procced without prepayment of fees and costs will be denied as moot
without prejudice. Brown may refile for such relief, if and when, it becomes necessary in
this litigation.
Motions for Evidentiary Hearing and Appointment of Counsel
Brown also filed motions for appointment of counsel and for an evidentiary hearing.
These motions will be denied without prejudice because they are premature. A movant “is
entitled to an evidentiary hearing [on a section 2255 motion] … unless ‘the motion and the
files and the records of the case conclusively show that [he] is entitled to no relief.’”
Witthar v. United States, 793 F.3d 920, 922 (8th Cir. 2015) (citation omitted) (quoting 28
U.S.C. § 2255(b)). The Court may dismiss a claim “without an evidentiary hearing if the
claim is inadequate on its face or if the record affirmatively refutes the factual assertions
upon which it is based.” Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (citing
Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990)).
In this case, it is too early in the proceeding for the Court to determine whether an
evidentiary hearing is necessary, as Respondent has not yet answered the motion and all
the pertinent files and records are not yet before the Court. The Court has not had the
opportunity to assess whether the facts alleged by Brown, if true, would entitle him to
relief. Thus, the Court will deny Brown’s motion for evidentiary hearing at this time. After
receiving Respondent’s brief—which will be due no later than forty-five (45) days from
the date of the Case Management Order—the Court will be able to determine whether an
evidentiary hearing is necessary.
Furthermore, there is neither a statutory nor constitutional right to appointed counsel
in proceedings pursuant to 28 U.S.C. § 2255. See Pennsylvania v. Finley, 481 U.S. 551,
555 (1987) (rejecting suggestions that a right to counsel on discretionary appeals be
established, and explaining “that the right to appointed counsel extends to the first appeal
of right, and no further”); Baker v. United States, 334 F.2d 444, 447 (8th Cir. 1964) (stating
that “a federal convict filing a motion under § 2255 is not entitled, as a matter of
constitutional right, to have court-appointed counsel in the preparation and presentation of
such a motion in the District Court or the Court of Appeals”). Rather, the Court may
appoint counsel in a § 2255 case if the interests of justice so require. See 28 U.S.C. §
2255(g); 18 U.S.C. § 3006A(a)(2)(B); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994)
(stating that it has never “been held that there is a constitutional right to counsel in a habeas
action” and that appointment of counsel is reviewed “for abuse of discretion”).
Again, Respondent has not yet answered in this case, and no evidentiary hearing has
been scheduled. Brown’s motion for appointment will be denied, subject to filing at a later
date, if and when, such a hearing is scheduled. If this Court determines that an evidentiary
hearing should be held, it will appoint counsel for that purpose pursuant to Rule 8(c) of the
Rules for Section 2255 Proceedings. However, Brown is not entitled to the assistance of
counsel for the filing of a Section 2255 motion.
Accordingly,
IT IS HEREBY ORDERED that Brown’s Motion and Affidavit to Proceed in
District Court Without Prepaying Fees or Costs [ECF No. 3] is DENIED as moot without
prejudice.
IT IS FURTHER ORDERED that Brown’s motion for appointment of counsel
[ECF No. 5] is DENIED without prejudice.
IT IS FINALLY ORDERED that Brown’s motion for an evidentiary hearing [ECF
No. 6] is DENIED without prejudice.
A Case Management Order will be issued separately in this matter.
Dated this 20" day of February, 2025.
Linn yp 4A Lf
/ Lif: fel < 7k. LZ.
SENIOR UNITED STATES DISTRICT JUDGE