Opinion
No. 04 Civ. 5062 (RMB) (HBP).
July 22, 2005
OPINION AND ORDER
By motion dated June 1, 2004, (Docket Item 2), petitioner in this Section 2254 proceeding seeks to have counsel appointed to represent him pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. For the reasons set forth below, the motion is denied without prejudice to renewal.
It is well settled that there is no constitutional right to counsel in a habeas corpus proceeding such as this one; rather the appointment of counsel in such proceedings is a matter of discretion. Wright v. West, 505 U.S. 277, 293 (1992);Pennsylvania v. Finley, 481 U.S. 551, 555-59 (1987); Heath v. United States Parole Comm'n, 788 F.2d 85, 88 (2d Cir. 1986);Moolenaar v. Mantella, 00 Civ. 6380 (RMB)(KNF), 2001 WL 43602 at *1 (S.D.N.Y. Jan. 18, 2001). Accordingly, petitioner's application should be analyzed in the same manner as any other application for counsel in a civil case.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of [petitioner's] case, the [petitioner's] ability to pay for private counsel, [petitioner's] efforts to obtain a lawyer, the availability of counsel, and the [petitioner's] ability to gather the facts and deal with the issues if unassisted by counsel."Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). In the words of the Court of Appeals for the Second Circuit:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. Accord Odom v. Sielaff, supra, at 1. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.").
Although I am willing to assume petitioner's financial inability to retain counsel and that he has made sufficient efforts on his own to secure counsel, his current application establishes none of the other elements relevant to an application for counsel. In response to the question on the form seeking a statement of the reasons why petitioner needs a lawyer, petitioner stated:
My claim involves complex legal and factual issues; a legal brief must be prepared and [I] do not have the knowledge to prepare such brief; and in case a hearing is ordered, I do not have the capacity to prepare myself or witnesses to testify on my behalf, nor do I have sufficient capacity to completely [sic] examine witnesses or develop any legal strategy or plan.
Petitioner's statement amounts to nothing more than a statement of universally applicable reasons that are present in every pro se habeas proceeding. Petitioner has failed to show that he has any particular need for the assistance of counsel.
I note that if a hearing in this matter is ordered, petitioner would then have a right to have counsel appointed. Rule 8(c), Rules Governing Section 2254 Cases in the United States District Courts.
Accordingly, petitioner's application for the appointment of counsel pursuant to the Criminal Justice Act is denied without prejudice to renewal. Any renewed application should be accompanied by an affidavit establishing the factors identified above.
SO ORDERED.