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In Re Pizzuti

December 7, 2010


PITMAN, United States Magistrate Judge:


I. Introduction

Petitioner Joseph Genua, an inmate in federal custody, commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2255, claiming that his conviction violated certain of his federally protected rights. By motion dated April 27, 2010 (Docket Item 318 in 02 Cr. 1237), petitioner seeks to have his Section 2255 motion supplemented by the arguments made in co-defendant Angelo DiPietro's Section 2255 motion. This request is granted.

By the same motion, petitioner also seeks to have counsel appointed to represent him pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. For the reasons set forth below, the motion is denied without prejudice to renewal.

II. Analysis

It is well settled that there is no constitutional right to counsel in a habeas corpus proceeding such as this one; rather, the appointment of counsel in such a proceeding is a matter of discretion. Wright v. West, 505 U.S. 277, 293 (1992); Pennsylvania v. Finley, 481 U.S. 551, 555-59 (1987); Heath v. United States Parole Comm'n, 788 F.2d 85, 88 (2d Cir. 1986); Moolenaar v. Mantella, 00 Civ. 6380 (RMB)(KNF), 2001 WL 43602 at *1 (S.D.N.Y. Jan. 18, 2001) (Fox, M.J.). Accordingly, petitioner's application should be analyzed in the same manner as any other application for pro bono 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 plaintiff's case, the plaintiff's ability to pay for private counsel, [the plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff'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. 1989). Of these, "[t]he factor which command[s] the most attention [is] the merits." Cooper v. A. Sargenti Co., supra, 877 F.2d at 172. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 at *1 (S.D.N.Y. April 26, 1996) (Batts, D.J.); see Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004). As noted over twenty years ago by the Court of Appeals:

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; see also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance." (citation and internal quotation marks omitted)).

The Court of Appeals for the Second Circuit has stated in various ways the applicable standard for assessing the merits of a pro se litigant's claim. In Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)], [the Court of Appeals] noted that "[e]ven where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim," and advised that a district judge should determine whether the pro se litigant's "position seems likely to be of substance," or showed "some chance of success." Hodge, 802 F.2d at 60-61 (internal quotation marks and citation omitted). In Cooper v. A. Sargenti Co., [the Court of Appeals] reiterated the importance of requiring indigent litigants seeking appointed counsel "to first pass the test of likely merit." 877 F.2d 170, 173 (2d Cir. 1989) (per curiam). Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204 (2d Cir. 2003).

I am willing to assume that petitioner lacks the resources to retain counsel because he is incarcerated. Although he provides no information on the subject, I am also willing to assume that petitioner needs an attorney because he has no legal training. However, petitioner's application establishes none of the other elements relevant to an application for counsel. For example, petitioner provides no information concerning the steps, if any, he has taken to find an attorney on his own.

In addition, it does not appear at this time that petitioner's claims are sufficiently meritorious to warrant the appointment of counsel.

Following a jury trial before the late Honorable Shirley Wohl Kram, United States District Judge, petitioner was convicted of conspiracy to commit extortion and extortion in violation of 18 U.S.C. § 1951 and 18 U.S.C. § 1952, for which he was sentenced to a term of imprisonment of 121 months. Petitioner asserts three claims arising out of events allegedly occurring prior to, during and subsequent to his trial: (1) the government failed to turn over exculpatory evidence that would have demonstrated actual innocence, thereby violating Brady v. Maryland, 373 U.S. 83, 87-88 (1963); (2) his counsel was ineffective for abandoning his Batson*fn1 challenge of the government's use of peremptory strikes, for failing to interview certain members of an organized crime task force after two task force members claimed that petitioner confessed, and for failing to appeal what he claims were the court's erroneous jury instruction regarding reasonable doubt as to each element of the crime, and (3) newly discovered evidence shows that an informant testifying against him, Din Celaj, committed perjury (Memorandum of Law in Support of 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence ("Pet. Memo in Support"), dated February 8, 2010 (Docket Item 3 in 10 Civ. 1003)).

In his first claim, petitioner alleges that the government failed to turn over tape recordings of two interviews conducted by state and federal officials of witness Frank Taddeo. Petitioner claims that Taddeo told his interviewers in August 2004 and January 2005 that petitioner took no part in the events involving victim John Perazzo. Petitioner further claims that he only found out about these interviews in early 2009 after speaking to Taddeo by telephone, and that the government never revealed or turned over these recordings (Pet. Memo in Support at 1).

The standards applicable to a collateral attack on a conviction alleging a Brady violation were succinctly set forth by the Honorable Lewis A. Kaplan, United States District Judge, in Lamberti v. United States, 22 F. Supp. 2d 60, 66-67 (S.D.N.Y. 1998), aff'd sub nom. without published opinion, Badalamenti v. United States, 201 F.3d 430 (2d Cir. 1999):

In order to establish a Brady v. Maryland violation, the defendant must show that (1) the government suppressed favorable evidence, and (2) the evidence the government suppressed was material. A defendant cannot satisfy the suppression requirement if the defendant, directly or through counsel, "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence." As for the materiality requirement, "favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." "A 'reasonable probability' is 'a probability sufficient to undermine confidence in the outcome' of the 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. ...

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