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Thomas Witt v. Steven E. Racette

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


April 20, 2011

THOMAS WITT, PETITIONER,
v.
STEVEN E. RACETTE, RESPONDENT.

The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The Court has received the attached application for the appointment of counsel. Petitioners do not have a constitutional right to counsel in a collateral challenge to a conviction or sentence. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The Court has the discretion to appoint counsel to represent a pro se habeas petitioner "[w]henver . . . the interests of justice so require." 18 U.S.C. § 3006A(a)(2).

The Court of Appeals for the Second Circuit has articulated factors that should guide the Court's discretion to appoint counsel to represent an indigent civil litigant under 28 U.S.C. § 1915. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986); Jackson v. Moscicki, No. 99 Civ. 2427 (JGK), 2000 WL 511642, at *4 (S.D.N.Y. Apr. 27, 2000). For the Court to order the appointment of counsel, the litigant must, as a threshold matter, demonstrate that his claim has substance or a likelihood of success on the merits. See Hodge, 802 F.2d at 61-62. Only then can the Court consider the other factors appropriate to determintion of whether counsel should be appointed: the litigant's "ability to obtain representation independently, and his ability to handle the case without assistance in the light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). As this Court has previously noted, "[t]hese are also useful standards to be applied in determining whether the interests of justice require the appointment of counsel for a petitioner in a habeas corpus proceeding." Jackson, 2000 WL 511642 at *4.

At this point, the petitioner has failed to show that his claims are likely to have merit, and the application for the appointment of counsel is therefore denied without prejudice. The petitioner can contact the Pro Se Office by telephone at 212-805-0175 or by mail at 500 Pearl Street, Room 230, New York, New York, 10007, for assitance with respect to Court procedures.

The Clerk is directed to close Docket No. 2.

SO ORDERED.

[Editor's Note: Attachment unavailable]

20110420

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