Oropeza v. Phelps et al

Filing 45

MEMORANDUM ORDER - denying 42 MOTION to Appoint Counsel. Signed by Judge Sue L. Robinson on 3/12/14. (mdb)

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

v.
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1

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) Civ. No. 11-396-SLR
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MEMORANDUM ORDER
At Wilmington this

ld*

day of March, 2014;

IT IS ORDERED that petitioner Kevin B. Oropeza's motion for representation by
counsel (D.I. 42) 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); 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
1

Warden David Pierce replaced former Warden Perry Phelps, an original party to
this case. See Fed. R. Civ. P. 25(d).

"interests of justice so require"). Factors to be considered by a court in deciding
whether to request a lawyer to represent an indigent petitioner include: (1) the merits of
the petitioner's claim; (2) the petitioner's ability to present his or her case considering
his or her education, literacy, experience, and the restraints placed upon him or her by
incarceration; (3) the complexity of the legal issues; (4) the degree to which factual
investigation is required and the petitioner's ability to pursue such investigation; (5) the
petitioner's capacity to retain counsel on his or her own behalf; and (6) the degree to
which the case turns on credibility determinations or expert testimony. Montgomery v.
Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56.
2. Here, petitioner requests representation by counsel because he was not
provided representation during his Rule 61 proceeding in the Delaware state courts.
Citing Martinez v. Ryan,_ U.S._, 132 S.Ct. 1309 (2012), petitioner contends that
the United States Supreme Court recognized an exception to Coleman's general rule
that there is no automatic constitutional right to counsel in collateral proceedings, and
asserts that he needs representation in order to present ineffective assistance of
counsel claims in the instant habeas proceeding. (D.I. 42 at 1)
3. Contrary to petitioner's assertion, Martinez did not recognize or create an
automatic constitutional right to counsel in collateral proceedings. See Martinez, 132
S.Ct. at 1319. Rather, Martinez held for the first time that the ineffective assistance of
counsel during initial collateral review proceedings, or the failure to appoint counsel
during initial collateral review proceedings, may establish cause in a federal habeas
proceeding sufficient to excuse a petitioner's procedural default of a claim of

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ineffective assistance of trial counsel when, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial review collateral proceeding rather
than on direct appeal. /d. (emphasis added). In other words, Martinez creates a
limited method for petitioners in federal habeas cases to prove cause for excusing their
state court procedural default of certain ineffective assistance of counsel claims.
4. Consequently, even after Martinez, a federal habeas court presented with a
motion requesting representation by counsel must still determine if the petitioner has
demonstrated special circumstances such that the interests of justice require
representation.
5. After viewing petitioner's motion 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. Petitioner's filings demonstrate his ability to articulate his claims
and represent himself. The case appears to be fairly straightforward and capable of
resolution on the record. It also does not appear that expert testimony will be
necessary or that the ultimate resolution of the petition will depend upon credibility
determinations. For these reasons, the court denies petitioner's motion.

UNITED STA ES DISTRICT JUDGE

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