Wilborn v. Ryan
Filing
65
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Renewed Motion for Appointment of Counsel (Docket Entry # 57 ). The renewed motion for appointment of counsel (Docket Entry # 57 ) is DENIED without prejudice. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN WILBORN,
Petitioner,
v.
CIVIL ACTION NO.
15-12827-RGS
KELLY RYAN,
Respondent.
MEMORANDUM AND ORDER RE:
RENEWED MOTION FOR APPOINTMENT OF COUNSEL
(DOCKET ENTRY # 57)
April 19, 2016
BOWLER, U.S.M.J.
Petitioner John Wilborn (“petitioner”) is seeking
appointment of counsel in the above styled petition for a writ of
habeas corpus filed under 28 U.S.C. § 2554.
(Docket Entry # 57).
Having paid the filing fee, he is not proceeding in forma
pauperis.
On November 4, 2015, the court denied petitioner’s first
motion for appointment of counsel reasoning, in part, as follows:
[A]t this stage of the litigation, the court does not find
that he has met his burden of demonstrating that the legal
issues are “especially complex” or beyond Wilborn’s
comprehension. Id. Accordingly, the court will not appoint
Wilborn a lawyer at taxpayer cost or direct a lawyer to
provide him pro bono services in this case.
(Docket Entry # 12) (citing DesRosiers v. Moran, 949 F.2d 15,
23-24 (1st Cir. 1991)).
DISCUSSION
There is no constitutional right to appointment of counsel
beyond the direct appeal of a criminal conviction.
Swazo v.
Wyoming Department of Corrections State Penitentiary Warden, 23
F.3d 332, 333 (10th Cir. 1994); see DesRosiers v. Moran, 949 F.2d
at 23 (“[t]here is no absolute constitutional right to a free
lawyer in a civil case”); see also Morin v. State of Rhode
Island, 741 F.Supp. 32, 36 (D.R.I. 1990) (constitution does not
mandate representation after trial and first appeal).
Rather,
appointment of counsel in a collateral attack on a criminal
conviction is discretionary.
See Jackson v. Coalter, 337 F.3d
74, 77 n.2 (1st Cir. 2003) (because “motion amounted to a
collateral attack on a final judgment of conviction, the
petitioner was not entitled as of right to court-appointed
counsel in connection with it”); Forte v. Commissioner of
Corrections, 2015 WL 5684085, at *1 (D.Mass. Sept. 28, 2015)
(recognizing, in habeas proceeding under 28 U.S.C. § 2254, that
“[t]here is no constitutional right to counsel in civil cases”).
Under 28 U.S.C. § 1915(e)(1), however, “the court ‘may request an
attorney to represent any person unable to afford counsel.’”
Feijoo v. Massachusetts Dept. of Public Safety, 2012 WL 3990195,
at *2 (D.Mass. Sept. 5, 2012) (quoting 28 U.S.C. § 1915(e)(1)).
In order to obtain appointed counsel, “an indigent litigant must
demonstrate exceptional circumstances in his or her case to
justify the appointment of counsel.”
Cookish v. Cunningham, 787
F.2d 1, 2 (1st Cir. 1986); see also United States v. Mala, 7 F.3d
1058, 1063-1064 (1st Cir. 1993)
The circumstances in the case at bar do not warrant
exercising this court’s discretion to appoint counsel.
2
Notably,
neither the facts nor the law is sufficiently complex to warrant
appointment of counsel.
Respondent Kelly Ryan (“respondent”) has
moved to dismiss the petition as untimely and outlined the
applicable law in detail.
(Docket Entry # 29).
Petitioner is
familiar with the procedural facts, which involve his filings in
state court, and respondent also sets out the various filings and
relevant facts in the supporting memorandum.
(Docket Entry #
29).
CONCLUSION
Accordingly, the renewed motion for appointment of counsel
(Docket Entry # 57) is DENIED without prejudice.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
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