Sanchez v. Silva et al

Filing 5

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Motion for the Appointment of Counsel (Docket Entry # 4 ). The motion for appointment of counsel (Docket Entry # 4 ) is DENIED. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RUBEN SANCHEZ,
Petitioner,
v.

CIVIL ACTION NO.
17-11811-MBB

STEVEN SILVA, Superintendent,
and MAURA HEALEY,
Respondents.
MEMORANDUM AND ORDER RE:
MOTION FOR THE APPOINTMENT OF COUNSEL
(DOCKET ENTRY # 4)
October 4, 2017

BOWLER, U.S.M.J.
Petitioner Ruben Sanchez (“petitioner”), an inmate at the
Souza Baranowski Correctional Center in Shirley, Massachusetts,
seeks appointment of David H. Mirsky, Esq. as counsel pursuant to
18 U.S.C. § 3006A(a)(2)(B) (“section 3006A(a)(2)(B)”) in the
above-styled petition for habeas corpus.

(Docket Entry # 4).

The petition raises a single ground for relief, namely, that the
trial judge violated petitioner’s Fourteenth Amendment right to
equal protection under Batson v. Kentucky, 476 U.S. 79 (1986), by
allowing “the prosecutor’s peremptory challenge of one or more
qualified Hispanic prospective jurors based on their Hispanic
ethnicity . . ..”

(Docket Entry # 1).
DISCUSSION

There is no constitutional right to appointment of counsel

in a habeas proceeding.

Wardlaw v. Cain, 541 F.3d 275, 279 (5th

Cir. 2008) (citing Pennsylvania v. Finley, 481 U.S. 551, 555
(1987)); Swazo v. Wyoming Department of Corrections State
Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994); see Ellis
v. U.S., 313 F.3d 636, 652 (1st Cir. 2002) (noting in 28 U.S.C. §
2255 proceeding that “convicted criminal has no constitutional
right to counsel with respect to habeas proceedings”); 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); see also Diaz v. Drew, Civil Action No.
16-11579-NMG, 2017 WL 2312823, at *2 (D. Mass. May 26, 2017).
Rather, under section 3006A(a)(2)(B) a court may appoint counsel
for a “financially eligible person seeking relief under section
2254 when the interests of justice require.”
Armontrout, 902 F.2d 701, 702 (8th Cir. 1990).

Battle v.
Cases warranting

appointment of counsel in “the interests of justice” under
section 3006A(a)(2)(B) typically involve nonfrivolous claims with
factually and/or legally complex issues and/or a petitioner who
is severely hampered in his ability to investigate the facts.
See United States v. Mala, 7 F.3d 1058, 1063-1064 (1st Cir. 1993)
(discussing application of section 3006A(a)(2) to section 2255
motion, noting coalescence of the three aforementioned
circumstances and citing Battle v. Armontrout, 902 F.2d at 702, a
28 U.S.C. § 2254 case); Battle v. Armontrout, 902 F.2d at 702

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(remanding section 2254 petition for appointment of counsel where
claim was nonfrivolous, facts and law were complex and the
petitioner’s incarceration severely hampered his investigative
abilities); see also Abdullah v. Norris, 18 F.3d 571, 573 (8th
Cir. 1994) (where the petitioner presents nonfrivolous claim,
court should consider legal and factual complexity of case and
the petitioner’s ability to investigate in appointing counsel
under section 3006A(a)(2)).
Here, the facts are relatively straight forward as they
involve peremptory challenges during jury selection.
Batson is also well established.

Moreover, petitioner cogently

and adequately presents the issue in the petition.
# 1, pp. 9-11).1

The law in

(Docket Entry

Appointment is therefore not advisable.

See,

e.g., Wardlaw v. Cain, 541 F.3d at 279 (denying habeas petitioner
appointment of counsel because “issue before the court is not
particularly complex, and Wardlaw has briefed it adequately”).
CONCLUSION
The motion for appointment of counsel (Docket Entry # 4) is
DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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Page numbers refer to the page as docketed.
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