The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge
By motion dated March 14, 2003 (Docket Item 8), 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 that petitioner lacks financial resources to hire an attorney, petitioner has failed to explain why she cannot present her case herself or why her petition has sufficient merit to warrant the appointment of counsel. In this regard, I note that the petition here asserts two claims: (1) that the presentence report was incomplete and (2) the sentence is excessive. With respect to the first claim, the Appellate Division's express finding of a procedural deficiency, see People v. Villafane, 294 A.D.2d 117, 740 N.Y.S.2d 872 (1st Dep't), leave to appeal denied, 98 N.Y.2d 682, 774 N.E.2d 237, 746 N.Y.S.2d 472 (2002), constitutes a substantial, and perhaps insurmountable, obstacle to habeas corpus relief. See generally Fama v. Commissioner of Corr. Serv., 235 F.3d 804, 809-10 (2d Cir. 2000). In addition, the legal merit of petitioner's claim concerning the length off her 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.
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