Opinion
06 Civ. 5419 (JSR) (HBP).
August 29, 2007
OPINION AND ORDER
By motion dated September 20, 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.
The date that actually appears on the notice of motion is "09-20-07." Since the motion was docketed by the Clerk of the Court on September 27, 2006, the date on the motion is obviously off by one year.
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, "To obtain exoneration of the crimes charged." Petitioner's statement amounts to nothing more than a statement of universally applicable reasons that are present in every pro se habeas proceeding.
In addition, petitioner has made no showing concerning the merits of his case. All three of petitioner's claims are based on alleged errors in the Trial Court's charge. Specifically, petitioner claims that the Trial court should have instructed the jury concerning (1) the inferences to be drawn from an allegedly "missing" witness; (2) the elements of an entrapment defense and (3) various lesser included offenses. At least in non-capital cases, such as this one, jury instructions are issues of state law and as such, rarely justify habeas relief. See Gilmore v. Taylor, 508 U.S. 333, 344 (1993); Estelle v. Maguire, 502 U.S. 62, 68 (1991). Thus, it is far from clear that petitioner even has a claim that is cognizable here.
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