Opinion
12-CV-08090 (AJN)(SN)
03-22-2013
Carlos HERNANDEZ, Petitioner, v. Roland LARKIN, Respondent.
OPINION AND ORDER
SARAH NETBURN, United States Magistrate Judge:
By motion dated March 20, 2013, petitioner Carlos Hernandez moves the Court to grant a request for pro bono counsel. For the reasons set forth below, the motion is denied without prejudice.
Appointment of counsel in habeas corpus cases is discretionary, and that discretion should be exercised only when the interests of justice so require, unless an evidentiary hearing is necessary. See 18 U.S.C. § 3006A(a)(2)(B). The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). Of these, "the factor which command[s] the most attention [is] the merits." Indeed:
[c]ourts do not perform a useful service if they appoint a volunteer law yer to a case which a private lawyer would not ta ke 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.
Id.
Here, petitioner's application does describe the efforts he made to obtain counsel in some detail. But without the benefit of the respondent's brief, the Court is unable evaluate the merit of the petition. Accordingly, the Court denies the petition's application without prejudice. The Court will revisit petitioner's request sua sponte after respondent has filed his response.
This resolves Docket Number 13.
SO ORDERED.
________
SARAH NETBURN
United States Magistrate Judge
DATED: New York, New York
March 22, 2013
cc: Carlos Hernandez
05A2006
Eastern Correctional Facility
P.O. Box 338
Napanoch, NY 12458