However, remand is not necessary if it “would be an ‘exercise in futility.'” Carmichael v. Warden, Maine State Prison, 346 F.Supp.2d 207, 209 (D. Me. 2004) (quoting Howland, 833 F.2d at 646)).
In determining whether to appoint counsel in civil proceedings, courts additionally have considered the likelihood of success of the claim, whether information necessary to support a petitioners claims are available in prior court filings, and the petitioner's prior experience litigating his or her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.1993) (noting the “fair likelihood of success on the constitutional claim” cut towards appointing counsel for habeas petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass.2008) (“When a petitioner can find the information necessary to support his claims in prior court filings, appointment of counsel is typically not appropriate.”); Carmichael v. Warden, 346 F.Supp.2d 207, 209 (D.Me.2004) (noting the “veteran litigator” petitioner's previous involvement in lawsuits and his ability to file appropriate motions demonstrate an ability to represent himself).In support of his request, Forte asserts: (1) he is unable to afford a lawyer; (2) habeas corpus litigation is complex and requires special experience and skill; (3) proper presentation of his claims will require soliciting affidavits from attorneys involved in state court proceedings and from an expert in video analyses; (4) facts relating to his prosecutorial misconduct/false evidence claim will be difficult to obtain without professional investigation and legal assistance; and (5) the evidence in his case is supportive of actual innocence.
See Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per curiam). In evaluating whether a petitioner's circumstances are exceptional, the court may consider, among other factors, the merits of the case, see DesRosiers, 949 F.2d at 24, and "the complexity of the factual and legal issues involved," Cookish, 787 F.2d at 3 (considering appointment of counsel in a non-habeas civil case pursuant to 28 U.S.C. §1915(d)); see also Carmichael v. Warden, 346 F.Supp.2d 207, 209 (D. Me. 2004) (applying the Cookish factors to assess the appointment of counsel under §3006A(a)(2)(B)); Manisy v.Maloney, 283 F.Supp.2d 307, 317 (D. Mass. 2003) (applying the DesRosiers factors to assess the appointment of counsel under §3006A(a)(2)(B)). While Lucien has made a commendable effort to present the complex legal and factual issues raised in his habeas petition, the court now finds that it is in the interest of justice to appoint counsel for him to brief further and argue the most complicated issues in this case.
Other factors the court may use to determine whether to appoint counsel in civil proceedings are: the likelihood of success of the claim; whether information necessary to support a petitioner's claims are available in prior court filings; and the petitioner's prior experience litigating his or her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting the "fair likelihood of success on the constitutional claim" cut towards appointing counsel for habeas petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass. 2008) ("When a petitioner can find the information necessary to support his claims in prior court filings, appointment of counsel is typically not appropriate."); Carmichael v. Warden, 346 F. Supp. 2d 207, 209 (D.Me. 2004) (noting the "veteran litigator" petitioner's previous involvement in lawsuits and his ability to file appropriate motions demonstrate an ability to represent himself). Whether Counsel Should Be Appointed In This Case
Other factors the court may use to determine whether to appoint counsel in civil proceedings are: the likelihood of success of the claim; whether information necessary to support a petitioner's claims are available in prior court filings; and the petitioner's prior experience litigating his or her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting the "fair likelihood of success on the constitutional claim" cut towards appointing counsel for habeas petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass. 2008) ("When a petitioner can find the information necessary to support his claims in prior court filings, appointment of counsel is typically not appropriate."); Carmichael v. Warden, 346 F. Supp. 2d 207, 209 (D.Me. 2004) (noting the "veteran litigator" petitioner's previous involvement in lawsuits and his ability to file appropriate motions demonstrate an ability to represent himself). Whether Counsel Should Be Appointed In This Case
Other factors the court may use to determine whether to appoint counsel in civil proceedings are: the likelihood of success of the claim; whether information necessary to support a petitioner's claims are available in prior court filings; and the petitioner's prior experience litigating his or her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting the "fair likelihood of success on the constitutional claim" cut towards appointing counsel for habeas petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass. 2008) ("When a petitioner can find the information necessary to support his claims in prior court filings, appointment of counsel is typically not appropriate."); Carmichael v. Warden, 346 F. Supp. 2d 207, 209 (D.Me. 2004) (noting the "veteran litigator" petitioner's previous involvement in lawsuits and his ability to file appropriate motions demonstrate an ability to represent himself). Whether Counsel Should Be Appointed In This Case
Other factors the court may use to determine whether to appoint counsel in civil proceedings are: the likelihood of success of the claim; whether information necessary to support a petitioner's claims are available in prior court filings; and the petitioner's prior experience litigating his or her own claims. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (noting the "fair likelihood of success on the constitutional claim" cut towards appointing counsel for habeas petitioner); Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D.Mass. 2008) ("When a petitioner can find the information necessary to support his claims in prior court filings, appointment of counsel is typically not appropriate."); Carmichael v. Warden, 346 F. Supp. 2d 207, 209 (D.Me. 2004) (noting the "veteran litigator" petitioner's previous involvement in lawsuits and his ability to file appropriate motions demonstrate an ability to represent himself). Whether Counsel Should Be Appointed In This Case
To determine whether to appoint counsel in a civil case, a court may consider "the indigent's ability to conduct whatever factual investigation is necessary to support his or her claim; the complexity of the factual and legal issues involved; and the capability of the indigent litigant to present the case." Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per curiam) (citations omitted) (considering appointment of counsel in a non-habeas civil case pursuant to 28 U.S.C. § 1915(d)); Carmichael v. Warden, 346 F.Supp.2d 207, 209 (D.Me. 2004) (applying the Cookish factors to assess the propriety of appointment of counsel under § 3006A (a)(2)(B)). 3. Analysis