Opinion
06 Civ. 15226 (RJH) (HBP).
November 30, 2007
OPINION AND ORDER
By motion dated March 18, 2007, (Docket Item 6), 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, "I need a lawyer because no arrest the District Attorney Office claim that the [illegible] violation 1300-02/1337-02/1792-02/ this could never happen base 1 arrest on new transcripts of April 9, 02 and Court order 8-27-02 dismiss charges." This explanation of why petitioner needs a lawyer is simply incomprehensible.
In addition, petitioner has made no showing concerning the merits of his case. Petitioner was convicted on the basis of his guilty plea to one count of grand larceny in the second degree in satisfaction of more than fifty counts of theft and fraud offenses that had been filed against him. Petitioner's Amended Petition, which is accompanied by approximately five inches of exhibits, contains a six-page long recitation of the grounds asserted in support of the petition. As is evident from the first two pages of the list, which are quoted below, most of
The first two pages of petitioner's list of claims state:
APPELLATE DIVISION — FIRST DEPARTMENT DEFENDANT PRO SE BRIEF AND MOTION REPLY BRIEF
Speedy Trial Violation No Proceeding Transcript
TRIAL JUDGE, DENIED MOTION TO WITHDRAW PLEA AT SENTENCING WITHOUT FACTS FINDING
NO CPL 710.30 NOTICE
ADA denied defendant to Suppress letter With Wife Name on it Plea Page 35 and 36
NO MARCH 24, 2003 HEARING TRANSCRIPT FILE
NO RASARIO [sic] AND BRADY MATERIAL FILE
2 COUNTS IN ARREST COMPLAINT 3-3-02
VIOLATION OF CONSOLIDATION INDICTMENTS 1300-2002/1337-2002/ and 1792-2002 improper
VIOLATION OF CHANGE OF VENUE MOTION First Dept. 1792-2002 3rd DEGREE 1737-2002 Not My Indictment
1337-2002 was dismiss
1337-20002 WAS dismiss on April 9, 2002 In part 60 on double jeopardy with 1300-2002
COMPLAINT OF MARCH 4, 2002 is Grand Larceny 3rd. degree PL 155.35 and Forgery 170.10 2nd degree indictment 1300-2002 for attempt grand larceny 155.35 also dismiss
There was no first hand knowledge proof
Defendant arrest and statement March 4, 2002 is without proof or evidence deemed to suppress
The Judge, ADA and defendant attorney violated Consolidated and Prohibition and double jeopardy CPL 200.20/200.30/200.40/200.80 improper misconduct
Improper Grand Jury Instruction on all indictments
Superceding indictment 1300-02 1537-02 should have been dismiss and only be 1792-2002 indicted
Defendant did not waive his Constitutional Right by his plea did forth fit [forfeit (?)] Rights See Plea
There is 2 Grand Jury Second (1) 1337-2002 (1) 1792-2002 both Second Grand Jury
There is both transcripts 2nd degree Grand Larceny 1337-2002 G.L. 2nd 1792-2002 G.L. 2nd Sentencing Plea
Amended Petition at 4-5
the grounds asserted either do not set forth a federal claim or are simply incomprehensible. Even if these claims were comprehensible and cognizable, the vast majority are unexhausted. The only claims petitioner raised on direct appeal were that the trial court improperly denied petitioner's motion to withdraw his claim that his federal right to a speedy trial was violated. Thus, petitioner has failed to show that his petition has sufficient merit to warrant the appointment of counsel.
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.