Opinion
No. 00 Civ. 8784 (LAK) (RLE).
December 29, 2004
MEMORANDUM OPINION AND ORDER
Pro Se petitioner Andres Velasquez ("Velasquez"), currently an inmate at Otisville Correctional Facility, filed a petition for writ of habeas corpus in the Southern District of New York on November 17, 2000, pursuant to 28 U.S.C. § 2254. Pending before the Court is Velasequez's December 22, 2004 application for appointment of counsel and a request to proceed in forma pauperis. For the reasons set forth below, Velasquez's application for appointment of counsel is DENIED, and his request to proceed in forma pauperis is GRANTED.
I. BACKGROUND
In his habeas petition Velasequez advances four claims as violations of the Fifth and Fourteenth Amendments of the United States Constitution and of Article I, § 6 of the New York State Constitution: (1) he was denied a fair trial because during summations the prosecutor suggested to the jury that his failure to testify proved his guilt of the crimes charged; (2) he received ineffective assistance of appellate counsel when his lawyer failed to raise and argue issues asserted in Velasequez's motions to vacate his conviction pursuant to § 330.30 of the New York Criminal Procedure Law; (3) the prosecutor allowed false and misleading testimony before the grand jury; and 4) he was denied effective assistance of trial counsel on multiple grounds. In addition, as a fifth claim, Velasequez asserts that the court's sentencing him as a persistent violent felony offender constituted a violation of due process and of the Ex-Post Facto Clause, and thus, violated the Fourteenth Amendment of the United States Constitution and Article I, § 10 of the New York State Constitution.I. DISCUSSION
There is no constitutional right to representation by counsel in habeas corpus proceedings. Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) ( citing United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960); see also Coita v. Leonardo, 1998 WL 187416 (N.D.N.Y. Apr. 14, 1998). However, a "court may request an attorney to represent any person unable to afford counsel," 28 U.S.C. § 1915(e)(1), and it may, in its discretion, appoint counsel where "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Where petitioner's claims may fairly be heard on written submissions, the appointment of counsel is not warranted, and such applications should ordinarily be denied. Coita, 1998 WL 187416, at *1 ( citing Adams v. Greiner, 1997 WL 266984 (S.D.N.Y. May 20, 1997)); see also Mitchell v. Breslin, 2002 WL 31255076, at *2 (S.D.N.Y. Oct. 8, 2002) ("[T]he Court should [also] consider the scarcity of volunteer attorneys and the allocation of that resource.") ( citing Cooper v. A. Sargent Co., 877 F.2d 170, 172 (2d Cir. 1989); De Los Rios v. United States, 1994 WL 502635, at *6 (S.D.N.Y. Sept. 14, 1994).
The Second Circuit has provided guidance to district courts in determining whether to appoint counsel for an indigent civil litigant in habeas corpus proceedings. If the court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). Once an initial determination has been made as to indigence and merit, the court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason why appointment of counsel would be more likely to lead to a just determination. Id. at 60-61.
Velasequez has provided enough evidence to satisfy the threshold requirement regarding his inability to afford counsel. Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). Velasequez was convicted in December 1990 of two counts of burglary in the first degree and resentenced as a violent felony offender to concurrent indeterminate prison terms of twelve years to life. Still incarcerated, Velasequez does not have any means to gain employment and cannot afford counsel.
However, Velasequez does not merit appointment of counsel under the remainder of the Hodge test. Velasequez's claims do not appear so overwhelmingly complex that he cannot be afforded a just determination without legal representation. Contrary to Velasequez's allegations, he seems to have the ability and knowledge to present his case. He has reasonably presented his arguments in his habeas petition, and the record is replete with motions, letters, and extensive briefs related to his state court convictions and appeals thereof, which he submitted to the court pro se. It also does not follow that his age of sixty-two years and medical conditions, although undeniably serious, preclude him from adequately prosecuting his action.
Furthermore, among the factors that a court may consider in determining whether to grant a habeas corpus petitioner's application for appointment of counsel is whether an evidentiary hearing should be held. If no evidentiary hearing is necessary, the appointment of counsel is not warranted. See U.S. ex. rel. Cadogan v. LaValle, 502 F.2d 824, 826 (2d Cir. 1974); see also Adams v. Greiner, 1997 WL 266984, at *1 (S.D.N.Y. May 20, 1997). This case is a habeas corpus proceeding requiring only the determination of legal issues. No factual investigation, cross-examination, or elaborate presentation of proof is necessary. The only factual issues in the case can be determined from the trial transcript, of which Velasequez has a copy. The Court has also been provided with relevant excerpts of transcripts from the trial, as well as all papers filed in connection with Velasequez's post-trial motions, and all judicial determinations in response to these motions. Velasequez's claims are not complex and can be decided solely on the submissions. See Newton v. Coombe, 1998 WL 418923, at *1 (S.D.N.Y. July 23, 1998); Jackson v. Walker 1997 WL 97832, at *2 (S.D.N.Y. March 6, 1997). The interests of justice do not require the appointment of counsel in this case. Newton, 1998 WL 418923, at *2.
II. CONCLUSION
Upon careful review of Velasequez's applications in light of the aforementioned principles, the Court holds that his request to proceed in forma pauperis is GRANTED, and his application for appointment of counsel is DENIED.
SO ORDERED.