Opinion
No. 04 Civ. 7970 (MBM) (DF).
July 11, 2005
Mr. Johnnie Brown, pro se, Arthur Correctional Facility, Staten Island, NY.
Michelle Maerov, Esq. Assistant Corporation Counsel, New York, NY.
MEMORANDUM AND ORDER
In connection with his petition for a writ of habeas corpus, dated July 19, 2004 ("Pet."), which is before this Court for a report and recommendation, pro se petitioner Johnnie Brown ("Petitioner") seeks appointment of counsel. For the reasons set forth below, Petitioner's application for appointment of counsel is hereby denied.
DISCUSSION
I. Applicable Legal Standard
While a habeas petitioner has no right to counsel, Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (citation omitted), this Court has discretion, under the Criminal Justice Act ("CJA"), to appoint counsel to any person "seeking relief" under 28 U.S.C. § 2254 who is "financially unable to obtain adequate representation . . . [w]henever . . . the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); see also Renis v. Thomas, No. 02 Civ. 9256 (DAB) (RLE), 2003 WL 22358799, at *3 (S.D.N.Y. Oct. 16, 2003); Bein v. Snow, No. 85 Civ. 0054 (SWK), 1987 WL 7376, at *3 (S.D.N.Y. Feb. 23, 1987). The governing rules require the appointment of counsel only when an evidentiary hearing is needed. Rule 8(c) of the Rules Governing § 2254 Cases in the United States District Courts. The appointment of counsel in all other circumstances is discretionary. See id.; Peralta v. Bennett, No. 01 Civ. 8049 (SHS) (DF), 2002 WL 334513, at *1 (S.D.N.Y. Mar. 1, 2002); see also Jackson v. Moscicki, Nos. 99 Civ. 2427 (JGK), 99 Civ. 9746 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000).
The Second Circuit has articulated several factors for a court to consider in deciding whether or not to appoint counsel to an indigent plaintiff under 28 U.S.C. § 1915. See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). "In deciding whether to appoint counsel, . . . [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge, 802 F.2d at 61). In order to make such a determination, the Court must decide whether, "from the face of the pleadings," Stewart v. McMikens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), the claims asserted by the plaintiff "may have merit," or the plaintiff "appears to have some chance of success." Baskerville v. Goord, No. 97 Civ. 6413 (BSJ) (KNF), 2001 WL 527479, at *1 (S.D.N.Y. May 16, 2001) (citations omitted); see also Hodge, 802 F.2d at 60-61. While the Court should not appoint counsel "indiscriminately" just because an indigent litigant makes such a request, it is not necessary for the plaintiff to demonstrate that his claims will survive a motion to dismiss or a motion for summary judgment; rather, the Court must find that the claims satisfy a "threshold showing of merit." Hendricks, 114 F.3d at 393-94.
The Court previously granted Petitioner leave to proceed in forma pauperis. ( See Order of Chief Judge Mukasey, dated October 6, 2004.)
Once it is determined that the claim meets this threshold merits requirement, the Court should consider a variety of factors, including:
the indigent's ability to investigate crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Hodge, 802 F.2d at 61-62; accord Hendricks, 114 F.3d at 392; Barton v. Walker, No. 99 Civ. 12016 (RMB) (HBP), 2000 WL 1290590, at *1 (S.D.N.Y. Sept. 13, 2000); Carpenter v. Greiner, No. 00 Civ. 2083 (AGS) (RLE), 2000 WL 1051876, at *1 (S.D.N.Y. July 31, 2000). In addition, the Court should consider the plaintiff's "ability to obtain representation independently." Cooper, 877 F.2d at 172.
Moreover, the Second Circuit has stated that, in deciding whether to appoint counsel, the Court should consider the scarcity of volunteer attorneys and the allocation of that resource. See Cooper, 877 F.2d at 172 ("[E]very assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste."); De Los Rios v. United States, No. 86 Cr. 279 (LMM), 1994 WL 502635, at *6 (S.D.N.Y. Sept. 14, 1994) ("Even if the claim is not frivolous, if the chances of succeeding on the merits are only slight, counsel may be denied because volunteer attorney time is a scarce commodity which must be allocated judiciously.").
The same standards apply in determining whether, in the interest of justice, to appoint counsel for a petitioner in a habeas proceeding. See, e.g., Cary v. Ricks, No. 00 Civ. 8926 (RWS), 2001 WL 314654, at *4 (S.D.N.Y. Mar. 30, 2001); Morris v. Reynolds, No. 98 Civ. 5439 (HB) (AJP), 1999 WL 632850, at *1 (S.D.N.Y. Aug. 1, 1999); Millan v. Keane, No. 97 Civ. 3874 (JGK), 1999 WL 178790, at *2 (S.D.N.Y. Mar. 31, 1999), aff'd, 208 F.3d 203 (2d Cir. 2000) (Table).
II. Petitioner's Application for Counsel
As indicated above ( see supra n. 1), Petitioner previously filed a motion for leave to proceed in forma pauperis, which he supported with a declaration setting forth facts relating to his financial status. In granting the in forma pauperis application, the Court determined that Petitioner is indigent. Further, regardless of whether Petitioner is substantially likely to prevail on his claims, he has met the low threshold requirement of alleging claims that, as pleaded, "may have merit." Baskerville, 2001 WL 527479, at *1; see also Hendricks, 114 F.3d at 393-94.
Beyond this, however, Petitioner has failed to make a showing sufficient to warrant the appointment of counsel in this case. In support of his application for counsel, Petitioner states only that he is "not familiar with the workings of the District Court" (Application for Appointment of Counsel ("Appl."), dated July 19, 2004, at ¶ 2), that the attorney who handled his criminal case and appeal could not assist him in this matter ( id. ¶ 3), and that, although Petitioner is fluent in English, he is "not well versed in the language of the law" ( id. ¶ 4). The petition itself, however, is reasonably clear as to the legal claims being raised, and Petitioner has not demonstrated that he is or will be unable to present the relevant facts or his legal position without the benefit of counsel. Further, the issues presented do not appear overly complex, and Petitioner has not shown that there are any special reasons in this case why the appointment of counsel would be more likely to lead to a just determination. Finally, based on this Court's review of the petition, it appears that the Court will be able to determine the issues raised based on the record of the state court proceedings and the other written material submitted by the parties, without need for an evidentiary hearing. See Bastien v. William, No. 03 Civ. 5749 (DLC) (KNF), 2004 WL 97694 (S.D.N.Y. Jan. 16, 2004).
Under these circumstances, the Court finds that the interests of justice do not necessitate appointment of pro bono counsel to represent Petitioner in this case.
CONCLUSION
For the foregoing reasons, Petitioner's application for counsel is denied.
SO ORDERED.