Bezarez v. Phelps et al

Filing 16

MEMORANDUM ORDER - denying 13 MOTION to Appoint Counsel filed by Jose D. Bezarez. Signed by Judge Sue L. Robinson on 8/1/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JOSE D. 8EZAREZ,
Petitioner,

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

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) Civ. No. 12-587-SLR
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MEMORANDUM ORDER
At Wilmington this

/,.".. day of ~

, 2013;

IT IS ORDERED that petitioner Jose D. 8ezarez's motion for representation by
counsel (D.1. 13) 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)(8)(representation by counsel may be provided when a court determines that the
"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 is unskilled in
the law and the complexity of the factual and legal issues presented in this case are
beyond his ability to pursue an effective investigation. Petitioner also asserts that he
does not have access to numerous surveillance videos, the State's witnesses prior out­
of-court statements given in Spanish, his accomplices' prior out-of-court statements, or
a copy of the original photo lineup that was presented to him, (0.1. 13 at 2-3),
Additionally, citing Martinez v. Ryan, _

U. S. _ , 132 S.Ct. 1309 (2012), petitioner

contends that the 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 application, (0.1. 13 at 2-3)
3. To begin, the court notes that 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

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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
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. Id. (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. In short, 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. Here, after viewing petitioner's 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. 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 STATE

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DISTRICT JUDGE