Opinion
99 Civ. 2420 (RMB)(KNF)
May 7, 2002
MEMORANDUM AND ORDER
Pedro Bridgewater has petitioned the court for a writ of habeas corpuspro se. He requests that counsel be appointed to assist him in this matter. His request for appointment of counsel is addressed below.
The appointment of counsel in a habeas corpus proceeding is discretionary. See Coita v. Leonardo, No. 96 Civ. 1044, 1998 WL 187416, at *1 (N.D.N.Y. April 14, 1998). In determining whether to exercise such discretion, a court should consider "the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case" Id. see De Los Rios v. United States, No. 86 CR. 279, 1994 WL 502635, at *6 (S.D.N Y Sept. 14, 1994).
It must appear to the Court, from the face of the pleadings (see Stewart v. McMickens, 677 F. Supp. 226, 228 [S.D.N.Y. 1988]), that the claim(s) asserted by the petitioner "may have merit," (see Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 [S.D.N.Y. July 9, 1999]), or that the petitioner "appears to have some chance of success . . . ." See Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986).
When considering the merits of an action brought by a pro se litigant, the complaint is held to a less stringent standard than that which would applied to a pleading crafted by an attorney. S.E. hails v. Kemer, 404 U.S. 519, 92 S.Ct. 594 (1972). That fact notwithstanding, a court must be wary when assigning counsel, because "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).
The Court has reviewed the five claims included in Bridgewater's petition. In Claim One, petitioner asserts that he was denied a fair trial by the trial court's decision to consolidate the four rape charges against him and its subsequent refusal to sever these cases. However, the charges seem to have been properly consolidated pursuant to state law and, once the offenses were properly joined, the trial court lacked statutory authority to sever. See New York Criminal Procedure Law § 200.20; People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 229 (1987). Moreover, to establish a due process violation based on joinder of offenses, petitioner must prove that " actual prejudice resulted from the events as they unfolded during the joint trial." Herring v. Meachum, 11 F.3d 374, 377, 378 (2d Cir. 1993) (emphasis in original).
In Claim Two, petitioner alleges that he was denied due process and a fair trial by the court's comment during the jury charge that petitioner was an interested witness and "you may find that an interested witness has tailored their testimony in favor of their interest." In Claim Three, petitioner alleges that he was denied due process and a fair trial by the prosecutor's misstatement of the evidence and denigrating comments about defense counsel during summation. These claims would likely be barred by an adequate and independent state ground: petitioner's failure to preserve the issue for appellate review.
Claim Four, excessive sentence, fails to show how the alleged violation would rise to the level of a constitutional violation. Claim Five, ineffective assistance of trial counsel, would likely be barred by an adequate and independent state ground: petitioner's failure to raise the issue on direct appeal despite a sufficient record. In addition, the claim is based, in part, on factual allegations that were not raised in state court and are therefore unexhausted for the purposes of habeas corpus review.
Review of the record has led the Court to conclude that petitioner has not demonstrated a likelihood of success on the merits such that it would be reasonable and appropriate to appoint counsel to represent him. Consequently, petitioner's application for appointment of counsel is denied.