Opinion
Civil No. 18-11581 (FLW)
03-28-2019
DENNIS KERRIGAN, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Respondent.
MEMORANDUM AND ORDER
FREDA L. WOLFSON , U.S.D.J.
Petitioner, Dennis Kerrigan ("Kerrigan" or "Petitioner"), acting pro se, commenced this proceeding by filing a petition for writ of habeas corpus under U.S.C. § 2254, which complained of the State's conduct during his criminal trial and alleged that he received ineffective assistance of counsel. (See Pet., ECF No. 1.) On December 7, 2018, the Court dismissed Kerrigan's Petition upon screening under Rule 4 of the Rules Governing § 2254 Cases because Kerrigan was not in custody when he filed his Petition. (ECF Nos. 5 & 6.)
As explained in that Memorandum Opinion, a § 2254 habeas petitioner must, at the time of filing, be in custody under the conviction he is attacking. 28 U.S.C. § 2254; Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003). --------
Kerrigan subsequently filed a letter with the Court requesting the appointment of counsel to represent him. (ECF No. 7.) Kerrigan acknowledges that he lacks grounds to assert a habeas claim, but now states that he would like to file a Complaint asserting violations of his civil rights. (See id.) He asks the Court to appoint him counsel to aid him in doing so.
Kerrigan's request implicates two separate provisions regarding appointment of counsel. In a habeas proceeding, like this one, in which Kerrigan filed his request, appointment of counsel is provided for under 18 U.S.C. § 3006A. Meanwhile, in a civil action, such as a civil rights action, which Kerrigan asserts he would like to commence, appointment of pro bono counsel is governed by 28 U.S.C. § 1915(e)(1) and related caselaw. Neither of these provisions support appointing Kerrigan counsel at this time, however, as he presently has no pending, potentially meritorious claim.
Under 18 U.S.C. § 3006A, courts may appoint counsel to habeas petitioners if they are "financially eligible" and if "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). In determining whether the interests of justice support the appointment of counsel, "the district court must first decide if the petitioner has presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and the court." Reese, 946 F.2d at 263. Kerrigan is not eligible for appointment of counsel under § 3006A because he has not presented a nonfrivolous claim. Indeed, the Court dismissed Kerrigan's § 2254 habeas Petition because he did not satisfy the central prerequisite for filing such a Petition—being in custody under the conviction he was challenging. (See ECF No. 5.)
Under 28 U.S.C. § 1915(e)(1), the Court may request pro bono counsel to represent a party in a civil action, but must first assesses the factors identified by the United States Court of Appeals for the Third Circuit in Tabron v. Grace, 6 F.3d 147. The first factor, which is also a threshold determination that must be established before considering any other factors, is the potential merit of the party's claim. See Tabron, 6 F.3d at 155, 158; Prudential Ins. Co. of Am. v. Dobson, No. 08-3951, 2009 WL 115966, at *1-2 (D.N.J. Jan. 16, 2009); Protameen Chems., Inc. v. Chinchilla, No. 05-3383, 2007 WL 174163, at *1 (D.N.J. Jan. 22, 2007). Kerrigan cannot meet the threshold requirement of a potentially meritorious claim, as he currently has no active civil claim before the Court. While Kerrigan has explained that he would like to file a civil rights Complaint, he has yet to do so.
If Kerrigan intends to assert a claim for civil rights violations, he must do so in a new Complaint filed with the Court on a new docket. If necessary, Kerrigan may move for pro bono counsel in that new matter. In the interests of justice, the Court will direct the Clerk's Office to send Kerrigan a form Complaint for Violation of Civil Rights (Non-Prisoner), Form Pro Se 15 (Rev. 12/16).
Therefore, IT IS, on this 28th day of March 2019,
ORDERED that this proceeding is REOPENED for the sole purpose of considering Plaintiff's application for appointment of counsel; and it is further
ORDERED that Plaintiff's application for the appointment of counsel (ECF No. 7) is DENIED; and it is further
ORDERED that the Clerk shall again mark this case as CLOSED; and it is further
ORDERED that the Clerk shall serve upon Plaintiff by regular U.S. mail (1) this Memorandum and Order and (2) a copy of Form Pro Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights (Non-Prisoner).
/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge