Oropeza v. Phelps et al

Filing 33

MEMORANDUM ORDER - denying w/out prejudice - re 26 MOTION to Appoint Counsel filed by Kevin B. Oropeza. Signed by Judge Sue L. Robinson on 4/25/12. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEVIN B. OROPEZA,
Petitioner,
v.

PERRY PHELPS,
Warden, and ATTORNEY
GENERAL OF THE STATE
OF DELAWARE,
Respondents.

)
)
)
)
) Civ. No. 11-396-SLR
)
)

)
)
)
)
)

MEMORANDUM ORDER
At Wilmington this J-Slrday of April, 2012;
IT IS ORDERED that petitioner Kevin B. Oropeza's motion for representation by
counsel (0.1. 26) is DENIED without prejudice to renew, for the reasons that follow:
1. It is well-settled that a petitioner does not have an automatic constitutional or
statutory right to representation in a federal habeas proceeding. See Coleman v.

Thompson, 501 U.S. 722, 752 (1991); Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir.
1991); United States v. Roberson, 194 F.3d 408, 415 n.5 (3d Cir. 1999). Nevertheless,
a court may seek representation by counsel for a petitioner who demonstrates" special
circumstances indicating the likelihood of substantial prejudice to [petitioner] resulting
... from [petitioner's] probable inability without such assistance to present the facts
and legal issues to the court in a complex but arguably meritorious case." See Tabron

v. Grace, 6 F.3d 147, 154 (3d Cir. 1993)(citing Smith-Bey v. Petsock, 741 F.2d 22, 26
(3d Cir. 1984); 18 U.S.C. § 3006A (a)(2)(B)(representation by counsel may be provided
when a court determines that the "interests of justice so require").

2. Here, petitioner requests representation by counsel because he cannot afford
counsel; he is unskilled in the law; he believes the issues in this case are complex; he
suffers from a permanent herniated disk injury which makes it difficult to write legibly
and focus; he has limited access to the law library; some of his legal materials were lost
during a prison transfer, and these materials would help substantiate the claims
asserted in his application; and he has limited ability to pursue an effective investigation
due to his incarceration. However, after viewing these reasons in conjunction with
petitioner's other filings in this case, the court concludes that the interests of justice do
not require representation by counsel at this time. It also does not appear that expert
testimony will be necessary or that the ultimate resolution of the petition will depend
upon credibility determinations.

2