Opinion
99 Civ. 12016 (RMB) (HBP).
September 7, 2000.
MEMORANDUM OPINION AND ORDER
By motion dated February 18, 2000, petitioner moves for appointment of counsel in connection with his application for a writ of habeas corpus. For the reasons set forth below, the motion is denied without prejudice to renewal.
A habeas petitioner has no right to counsel. Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993), citing United States ex. rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960); Carpenter v. Greiner, 00 Civ. 2083 (AGS) (RLE), 2000 WL 1051876 at *1 (S.D.N.Y. July 31, 2000). Although Rule 8(c) of the Rules Governing Section 2254 Cases requires the appointment of counsel when an evidentiary hearing is necessary, the appointment of counsel is discretionary in all other cases. Jackson v. Moscicki, 00 Civ. 2427 (JGK), 2000 WL 511642 at *4 (S.D.N Y April 27, 2000).
The Court of Appeals for this Circuit has identified the factors to be considered in ruling on a motion for appointment of counsel:
In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). Accord Nevarez v. Artuz, 99 Civ. 2410 (LBS), 2000 WL 718450 at *6 (S.D.N.Y. June 5, 2000); Manley v. Strack, 97 Civ. 2120 (LAP) (NRB), 1998 WL 1039736 at *1 (S.D.N.Y. Sept. 3, 1998). See also Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 at *1 (S.D.N.Y. April 26, 1996).
Petitioner asserts seven claims here: (1) that his right to a speedy trial was violated; (2) that the jury charge was erroneous; (3) that trial counsel was ineffective; (4) that petitioner was not competent to stand trial; (5) that prejudicial statements were not recorded on the trial transcript; (6) ineffective assistance of appellate counsel and (7) the use of inadmissible evidence at trial.
I have not yet decided whether an evidentiary hearing is necessary. Accordingly, at least at the current stage of the proceeding, the mandatory appointment provisions of Rule 8(c) are not implicated. In the event that I decide that an evidentiary hearing is required, I shall appoint counsel sua sponte.
In addition, based on the current record, plaintiff's application for the appointment of counsel is deficient. Even if I assume that plaintiff, as an incarcerated inmate, lacks the financial resources to retain counsel, he has not made any showing in his application for counsel that his claims are sufficiently meritorious to warrant the appointment of counsel. Rather, the majority of petitioner's application for counsel deals with complaints about his treatment while in state custody; such complaints are immaterial to a habeas corpus petition alleging an illegal conviction. Petitioner's application for counsel does contain some statements concerning alleged violations of state speedy trial statutes, violations of the Fourth Amendment and the ineffective assistance of counsel. However, at least preliminarily, none of these issues appear to be sufficiently meritorious to warrant appointment of counsel. Based on my preliminary review of the petition, it appears some of the claims asserted by petitioner are based on state law while others appear to be an attempt to overturn the Trial Court's findings of fact. The former category of claims are simply not cognizable on a habeas petition. As to the latter group, petitioner bears the heavy burden of showing, by clear and convincing evidence, that the Trial Court's findings are incorrect. 28 U.S.C. § 2254(e)(1). It does not currently appear that petitioner is in possession of such evidence.
If in the course of my plenary review of the petition, I determine that petitioner has raised questions of substance, I shall sua sponte appoint counsel. At this time, however, there appears to be no reason to do so.
Accordingly, plaintiff's motion for appointment of counsel is denied without prejudice to renewal.