Opinion
04 Civ. 5063 (RMB) (DF).
July 12, 2005
Mr. Fernando Ferrer, Pro se, Green Haven Correctional Facility, Stormville, NY.
Maria I. Immitt, Esq., Assistant District Attorney, Bronx County, Bronx, NY.
MEMORANDUM AND ORDER
In connection with his petition for a writ of habeas corpus, dated April 27, 2004 ("Pet."), which is before this Court for a report and recommendation, pro se petitioner Fernando Ferrer ("Petitioner") seeks appointment of counsel. For the reasons set forth below, Petitioner's application for appointment of counsel is hereby denied.
DISCUSSION
I. Applicable Legal Standard
While a habeas petitioner has no right to counsel, Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (citation omitted), this Court has discretion, under the Criminal Justice Act ("CJA"), to appoint counsel to any person "seeking relief" under 28 U.S.C. § 2254 who is "financially unable to obtain adequate representation . . . [w]henever . . . the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); see also Renis v. Thomas, No. 02 Civ. 9256 (DAB) (RLE), 2003 WL 22358799, at *3 (S.D.N.Y. Oct. 16, 2003); Bein v. Snow, No. 85 Civ. 0054 (SWK), 1987 WL 7376, at *3 (S.D.N.Y. Feb. 23, 1987). The governing rules require the appointment of counsel only when an evidentiary hearing is needed. Rule 8(c) of the Rules Governing § 2254 Cases in the United States District Courts. The appointment of counsel in all other circumstances is discretionary. See id.; Peralta v. Bennett, No. 01 Civ. 8049 (SHS) (DF), 2002 WL 334513, at *1 (S.D.N.Y. Mar. 1, 2002); see also Jackson v. Moscicki, Nos. 99 Civ. 2427 (JGK), 99 Civ. 9746 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000).
The Second Circuit has articulated several factors for a court to consider in deciding whether or not to appoint counsel to an indigent plaintiff under 28 U.S.C. § 1915. See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). "In deciding whether to appoint counsel, . . . [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge, 802 F.2d at 61). In order to make such a determination, the Court must decide whether, "from the face of the pleadings," Stewart v. McMikens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), the claims asserted by the plaintiff "may have merit," or the plaintiff "appears to have some chance of success." Baskerville v. Goord, No. 97 Civ. 6413 (BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001) (citations omitted); see also Hodge, 802 F.2d at 60-61. While the Court should not appoint counsel "indiscriminately" just because an indigent litigant makes such a request, it is not necessary for the plaintiff to demonstrate that his claims will survive a motion to dismiss or a motion for summary judgment; rather, the Court must find that the claims satisfy a "threshold showing of merit." Hendricks, 114 F.3d at 393-94.
The Court previously granted Petitioner leave to proceed in forma pauperis. ( See Order of Chief Judge Mukasey, dated June 28, 2004 (Dkt. 1).)
Once it is determined that the claim meets this threshold merits requirement, the Court should consider a variety of factors, including:
the indigent's ability to investigate 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, 802 F.2d at 61-62; accord Hendricks, 114 F.3d at 392; Barton v. Walker, No. 99 Civ. 12016 (RMB) (HBP), 2000 WL 1290590, at *1 (S.D.N.Y. Sept. 13, 2000); Carpenter v. Greiner, No. 00 Civ. 2083 (AGS) (RLE), 2000 WL 1051876, at *1 (S.D.N.Y. July 31, 2000). In addition, the Court should consider the plaintiff's "ability to obtain representation independently." Cooper, 877 F.2d at 172.
Moreover, the Second Circuit has stated that, in deciding whether to appoint counsel, the Court should consider the scarcity of volunteer attorneys and the allocation of that resource. See Cooper, 877 F.2d at 172 ("[E]very assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste."); De Los Rios v. United States, No. 86 Cr. 279 (LMM), 1994 WL 502635, at *6 (S.D.N.Y. Sept. 14, 1994) ("Even if the claim is not frivolous, if the chances of succeeding on the merits are only slight, counsel may be denied because volunteer attorney time is a scarce commodity which must be allocated judiciously.").
The same standards apply in determining whether, in the interest of justice, to appoint counsel for a petitioner in a habeas proceeding. See, e.g., Cary v. Ricks, No. 00 Civ. 8926 (RWS), 2001 WL 314654, at *4 (S.D.N.Y. Mar. 30, 2001); Morris v. Reynolds, No. 98 Civ. 5439 (HB) (AJP), 1999 WL 632850, at *1 (S.D.N.Y. Aug. 1, 1999); Millan v. Keane, No. 97 Civ. 3874 (JGK), 1999 WL 178790, at *2 (S.D.N.Y. Mar. 31, 1999), aff'd, 208 F.3d 203 (2d Cir. 2000) (Table).
II. Petitioner's Application for Counsel
As indicated above ( see supra n. 1), Petitioner previously filed a motion for leave to proceed in forma pauperis, which he supported with a declaration setting forth facts relating to his financial status. In granting the in forma pauperis application, the Court determined that Petitioner is indigent. Further, regardless of whether Petitioner is substantially likely to prevail on his claims, he has met the low threshold requirement of alleging that at least certain of his claims, as pleaded, "may have merit." Baskerville, 2001 WL 527479, at *1; see also Hendricks, 114 F.3d at 393-94.
In his Petition, Petitioner asserts three claims: (1) that the evidence at trial was legally insufficient to support the verdict, (2) that Petitioner's constitutional rights were violated by a denial of access to Rosario/Brady information, and (3) that his due process rights were violated by an excessive delay between his conviction and sentencing. (Pet. ¶ 12.) Respondent has opposed each of these claims. ( See Respondent's Memorandum of Law in opposition to the petition, at 4-22, attached to Affidavit of Maria I. Immit in opposition to the petition, sworn to August 13, 2004 (Dkt. 5).) In a reply affidavit, Petitioner sets forth facts supporting his assertion that he has exhausted each of these three claims, but then, in his accompanying memorandum of law, he appears to drop his second claim and to add a new habeas claim challenging an alleged legal inconsistency in the verdict. ( See Petitioner's Memorandum of Law, at "Point Two," attached to Petitioner's reply affidavit, sworn to January 6, 2005 (Dkt. 9).) In light of this, the Court is separately issuing an Order inviting Petitioner to clarify whether, in fact, he intended to abandon his second claim, and offering Respondent an opportunity to respond to the new claim that Petitioner has raised. For purposes of Petitioner's application for counsel, however, the potential change in Petitioner's claims is not significant, because both his claim that the verdict was legally insufficient, and his claim of excessive delay — both of which he raised in his Petition and also addressed in his brief — appear to have "some chance of success." Baskerville, 2001 WL 527479, at *1.
Beyond this, however, Petitioner has failed to make a showing sufficient to warrant the appointment of counsel in this case. In support of his application for counsel, Petitioner states only that he "is a lay person and does not have any knowledge on filing a habeas corpus," that "the law and procedures are too complex," that he "does not wish for his application to be defaulted due to an error," and that he has contacted three different agencies to try to obtain an attorney, without success. (Application for Appointment of Counsel ("Appl."), dated October 25, 2004 (Dkt. 7), ¶¶ 2-3.) Actually, however, Petitioner has demonstrated an unusual level of capability for a pro se litigant, in that he has filed a detailed affidavit on the issue of exhaustion, as well as a lengthy, organized, and articulate memorandum of law in reply to other points made in Respondent's opposition brief. In his memorandum, Petitioner has set forth extensively the facts that he considers relevant and has cited federal case law in support of his various legal arguments. Based on these submissions, the Court cannot conclude that Petitioner requires the assistance of counsel in order to explain adequately the bases of his claims or to avoid a procedural default in this Court.
The pleadings of a pro se litigant are construed liberally by this Court, see, e.g., Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995), and, as noted above, the Court will not assume that Petitioner has abandoned any claim he asserted in his Petition without first providing him with an opportunity to explain his intention.
Further, the legal issues presented in this case do not appear overly complex, and Petitioner has not shown that there are any special reasons in this case why the appointment of counsel would be more likely to lead to a just determination. Finally, based on this Court's review of the petition, it appears that the Court will be able to determine the issues raised based on the record of the state court proceedings and the other written material submitted by the parties, without need for an evidentiary hearing. See Bastien v. William, No. 03 Civ. 5749 (DLC) (KNF), 2004 WL 97694 (S.D.N.Y. Jan. 16, 2004).
Under these circumstances, the Court finds that the interests of justice do not necessitate appointment of pro bono counsel to represent Petitioner in this case.
CONCLUSION
For the foregoing reasons, Petitioner's application for counsel is denied.
SO ORDERED.