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Colarusso v. Rivera

September 13, 2004


The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge


In connection with his amended petition for a writ of habeas corpus, dated July 29, 2003 ("Am. Pet.") (which is before this Court for a report and recommendation), pro se petitioner Anthony Colarusso ("Petitioner") seeks appointment of counsel. For the reasons set forth below, Petitioner's application for appointment of counsel is hereby denied.


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); 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. The appointment of counsel in all other cases 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*fn1 plaintiff under 28 U.S.C. § 1915. See Cooper v. A. Sargenti Co., 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 61-62). 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.

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, 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), in connection with his application for counsel, Petitioner filed a motion for leave to proceed in forma pauperis. He supported that motion and the present application with a declaration setting forth facts showing that he is indigent. This submission appears adequate to demonstrate that Petitioner cannot afford counsel. 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 argues that he does not read or write well, and does not "understand all the legal tactics, questions and ways to complete all the paper work for [his] habeas corpus [petition]." (Application for Appointment of Counsel, dated Aug. 25, 2003, at 1.) The petition itself, however, is reasonably clear as to the claims made, and, in fact, several of the claims are identical to those raised in a previous state court motion, where Petitioner was represented by counsel. Additionally, although Petitioner claims that he does not understand how to complete the "paperwork" for the petition, he was able to respond adequately to the Court's Order to amend his petition to demonstrate exhaustion ( see Order at 2-3), and the only place in the petition where Petitioner was apparently ...

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