Isaacs v. Smith

Full title: ANTHONY ISAACS, Petitioner, v. JOSEPH T. SMITH, Respondent

Court: United States District Court, S.D. New York

Date published: Jan 28, 2005

No. 04 Civ. 3403 (DLC) (HBP) (S.D.N.Y. Jan. 28, 2005)

Opinion

No. 04 Civ. 3403 (DLC) (HBP).

January 28, 2005

MEMORANDUM OPINION AND ORDER

HENRY PITMAN, Magistrate Judge

By motion dated July 16, 2004 (Docket Item 7), petitioner in this Section 2254 proceeding seeks to have counsel appointed to represent him here 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. 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. 1986). 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.

In a report and recommendation issued on this day, I have concluded that the petition is clearly time barred and should be dismissed. Since the petition is clearly time-barred, it lacks merit, and the appointment of counsel is, therefore, not warranted.

Accordingly, petitioner's application for the appointment of counsel pursuant to the Criminal Justice Act is denied.

SO ORDERED.