UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 30, 2009
THOMAS KELLY, PETITIONER,
SUPERINTENDENT LEMPKE, RESPONDENT.
The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge
MEMORANDUM OPINION & ORDER
Pro sePetitioner Thomas Kelly seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 12, 2009, Kelly filed an application for the appointment of counsel to assist him in obtaining the relief he seeks through his instant Petition. For the reasons that follow, Kelly's request for counsel is DENIED, without prejudice to renew.
Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." Specifically in the context of habeas cases, the Court may appoint an attorney to represent a prisoner pursuant to 18 U.S.C. § 3006A. The appointment of counsel is discretionary in a habeas corpus proceeding. See Coita v. Leonardo, 1998 WL 187416, at *1 (N.D.N.Y. April 14, 1998). Among the factors which a court may consider in determining whether to grant a habeas corpus petitioner's application for the appointment of counsel is whether an evidentiary hearing should be held in connection with the petition. Where no hearing is to be held, the appointment of counsel is not warranted. See U.S. ex rel Cadogan v. LaVallee, 502 F.2d 824, 826 (2d Cir. 1974); see also Adams v. Grenier, 1997 WL 266984 (S.D.N.Y. May 20, 1997).
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