The opinion of the court was delivered by: Seybert, District Judge
Pending before the Court are pro se habeas Petitioner Alton Lawson's ("Petitioner") requests (1) to appoint counsel;
(2) to be released from prison pending the Court's decision on his petition; and (3) for discovery. For the reasons discussed below, all three of Petitioner's requests are DENIED, but without prejudice to re-apply for appointed counsel at a later time.
Petitioner challenges his convictions of Grand Larceny in the Second Degree, Grand Larceny in the Third Degree, and Scheme to Defraud in the First Degree on the following five grounds: (1) that the trial court violated Petitioner's Fifth Amendment protection against self-incrimination by allowing his former attorneys to testify against him; (2) that the trial court violated Petitioner's Sixth Amendment right to counsel by disqualifying Petitioner's retained counsel; (3) that the trial court's restitution order was unlawful; (4) that the evidence against Petitioner was legally insufficient to convict; and (5) that Petitioner's counsel was constitutionally ineffective.
The Court addresses Petitioner's three motions in turn.
I. Motion to Appoint Counsel
A habeas corpus petitioner has no constitutional right to counsel. See Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (citing United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960)). A court may, however, appoint counsel when required by the interests of justice. See 18 U.S.C. § 3006A(a)(2)(B). If a petitioner's claims may be fairly determined on written submissions, appointment of counsel normally is not warranted. See Adams v. Greiner, No. 97-CV-3180, 1997 WL 266984, at *1 (S.D.N.Y. May 20, 1997).
In deciding whether to exercise their discretion to appoint counsel in habeas corpus proceedings, courts look to the standard set forth by the Second Circuit in determining whether to appoint counsel to indigent civil litigants under 28 U.S.C. § 1915. See Tejada v. Suffolk County, No. 05-CV-2961, 2007 U.S. Dist. LEXIS 20043, at *6 (E.D.N.Y. 2007). As such, a court must first ascertain "whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986); see also Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). If the claim meets this threshold requirement, the Court then considers other criteria, including "the indigent's ability to investigate the 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 legal issues" implicated, or any other circumstance which would render appointment appropriate. Hodge, 802 F.2d at 61-62. In deciding whether to appoint counsel, the Court remains mindful that an appointed lawyer's time is a precious commodity that should not be allocated arbitrarily. See Cooper, 877 F.2d at 172.
Having considered the Hodge factors and reviewed Petitioner's filings in this proceeding, the Court finds that appointment of counsel is not warranted at this time.
Petitioner asserts five grounds for relief, including that his trial counsel rendered ineffective assistance and that the evidence was legally insufficient to convict. The Court declines to appoint counsel at this juncture because the issues here do not appear to require extensive fact investigation and it seems Petitioner's case will likely be resolved on written submissions. This decision is without prejudice to Petitioner's ability to re-apply for appointed counsel should circumstances warrant at a later date, and the Court, if appropriate, will revisit whether appointed counsel is warranted when it addresses Petitioner's claims on their merits.
II. Release Pending the Court's Habeas Decision
Petitioner also moves the Court for a new trial and an order securing his release pending the Court's decision on his habeas petition. (Docket Entry 12.) This motion is essentially an abridged restatement of the arguments presented in the main petition. Petitioner's motion is DENIED for now, and the Court will address whether ...