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Smith v. Fischer

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 15, 2006

LEON SMITH, PETITIONER,
v.
BRIAN FISCHER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

Leon Smith has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He now moves for appointment of counsel under the Criminal Justice Act (the "CJA"), 18 U.S.C. § 3006A. Specifically, he requests that Richard M. Greenberg of the Office of the Appellate Defender, the attorney who represented him in the state court proceedings and who has appeared on his behalf in this Court, be permitted to apply for compensation under the CJA.

A petitioner has no constitutional right to counsel in a collateral proceeding attacking his conviction. See Coleman v. Thompson, 501 U.S. 722, 756 (1991) (no right to counsel beyond first appeal). "Nonetheless, the importance of assistance of counsel cannot be denied whenever a petitioner is facing deprivation of liberty." De Los Rios v. United States, No. 86 Cr. 279, 1994 WL 502635, at *6 (S.D.N.Y. Sept. 14, 1994) (internal quotation marks and citation omitted). Accordingly, a court may exercise its discretion and appoint counsel under the CJA in a habeas proceeding. Id.; see also Saracina v. Artus, No. 04-CV-0521, 2004 WL 1682771, at *1 (W.D.N.Y. July 26, 2004) (counsel may be appointed for habeas petitioner under the CJA "in the interests of justice"). In doing so, it should consider such factors as the likelihood of success on the merits, the complexity of the legal issues raised, and the petitioner's ability to investigate and present his case. De Los Rios, 1994 WL 502635, at *6.

Here, these factors militate in favor of granting Mr. Smith's application. The petitioner asserts a colorable claim: he contends, among other things, that his trial attorney provided ineffective assistance of counsel by failing to seek a determination of Mr. Smith's competence to stand trial while at the same time relying on the petitioner's bizarre behavior during the court proceedings to support an insanity defense. Because this issue involves the interplay of legal and psychiatric issues, it is particularly complex. And, although Mr. Smith could rely to a large extent on the briefs submitted in the state courts, counsel's assistance is important in framing the arguments to meet the standards for habeas corpus review.

Accordingly, the petitioner's application is granted, and Richard M. Greenberg may apply for fees under the CJA.

SO ORDERED.

JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

20060215

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