Opinion
99 Civ. 12017 (LAK)
February 12, 2002
ORDER
In a careful report and recommendation dated January 18, 2002, Magistrate Judge Theodore H. Katz recommended the dismissal of the petition on the ground that two of petitioner's three contentions are unexhausted and procedurally barred and that the third raises no substantial constitutional issue. Petitioner subsequently wrote to Judge Katz to request the appointment of counsel "due to mental health condition" and because he lacks legal knowledge and is being denied access to the prison law library. That letter has been referred to me.
The appointment of counsel in habeas proceedings is governed by the Criminal Justice Act, 18 U.S.C. § 3006A(a)(2) and Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts, which make such appointments mandatory for qualified applicants if an evidentiary hearing is required and permissible at other stages "if the interest of justice so requires." The Second Circuit, however, has made clear that "the Court should exercise its discretion to appoint counsel only in cases where plaintiff has made `a threshold showing of some likelihood of merit.'" Hendricks v. Coughlin, 114 F.3d 390, 391 (2d Cir. 1997) (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989)).
Here, the petition is patently frivolous for the reasons set forth by Judge Katz. Accordingly, the application for the appointment of counsel is denied. The petition is dismissed. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.