Opinion
02 Civ. 2130 (RCC) (HBP)
March 14, 2002
MEMORANDUM OPINION AND ORDER
By motion dated April 23, 2002 (Docket Item 5), petitioner moves for the appointment of counsel. For the reasons set forth below, the motion is denied without prejudice to renewal.
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. 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. 1986). 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.
Petitioner's current application establishes none of the elements necessary to justify appointing counsel. Although I am willing to assume the petitioner lack financial resources to hire an attorney, petitioner has failed to explain why he cannot present his case himself or why his petition has sufficient merit to warrant the appointment of counsel. In this regard, I note that the petition here asserts four claims: ineffective assistance of counsel, a violation of plaintiff's Fifth Amendment right to remain silent, that the evidence was insufficient to sustain the verdict and that petitioner's sentence was excessive. Although the ultimate merit of these claims is not at issue in the current motion, the merits of these claims is far from clear at this point.
Petitioner's claim of ineffective assistance based on counsel's failure to mount an insanity or diminished capacity defense is inconsistent with petitioner's denial that he committed the acts in issue. Thus, petitioner's ability to show prejudice is questionable. Second petitioner's claim that the prosecution unfairly commented on his post-arrest silence is subject to the defense of procedural bar and is opposed by respondent on the merits. Third, petitioner will have to sustain a heavy burden in order to prevail on his insufficiency claim.United States v. Kinney, 211 F.3d 13, 16-17 (2d Cir. 2000), cert. denied, 531 U.S. 1079 (2001). Fourth, the legal merit of petitioner's claim concerning the length of his sentence is highly questionable in light of recent Supreme Court precedent. See generally Ewing v. California, 113 S.Ct. 1179 (2003). Accordingly, at least preliminarily, it does not appear that petitioner's claims have sufficient merit to warrant the appointment of counsel.
Accordingly, petitioner's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit specifically addressing the relevant factors set forth above. The affidavit should provide details to establish that the foregoing factors are satisfied.
SO ORDERED