Watt v. Marchilli

Filing 10

Magistrate Judge David H. Hennessy: ORDER entered denying without prejudice 2 Motion to Appoint Counsel. [Copy of order mailed to plaintiff on 5/20/16.] (PSSA, 3)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRANCIS WATT,
Petitioner,
v.

RAYMOND MARCHILLI,
Respondent.

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CIVIL ACTION
NO. 16-40045-DHH

ORDER
MayQle2016

HENNESSY, M.J.
Petitioner Francis Watt has filed a motion for appointment of counsel. For the reasons set
forth below, the motion is denied without prejudice.
Under the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A, the Court may appoint
counsel for a "financially eligible" habeas petitioner if "the interests ofjustice so require." 18
U.S.C. § 3006A(a)(2). In determining whether the interests of justice require the appointment of
counsel, the Court must examine the totality of the circumstances, focusing on whether the
petitioner has presented a colorable claim, the complexity of the legal issues, the intricacy of any
factual issues, and the petitioner's ability to represent himself. See United States v. GuadalupeQuinones, 65 Fed. Appx. 329, 333 (lst Cir. 2003); Abdullah v. Norris, 18 F.3d 571,573 (8th Cir.

1994). In addition, if the Court decides to conduct an evidentiary hearing on the petition, the
interests of justice will require appointment of counsel. See Rule 8(c) of the Rules Governing
Section 2254 Cases ("If an evidentiary hearing is warranted, the judge must appoint an attorney
to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.").
Here, the Court cannot yet ascertain if the petitioner is financially eligible for the
appointment ofCJA counsel. Although Watt indicates in his motion and in his cover letter that
. he submitted an Application to Proceed in District Court Without Prepaying Fees or Costs, the
Clerk did not receive this document. Other than the general assertion that he cannot afford
counsel, the petitioner did not submit any information concerning his financial status.

Further, the interests of justice do not require the appointment of CJA counsel at this
stage of the proceedings. It appears that some of the claims have not been exhausted in state
court, thus precluding the Court from providing any relief on the basis of such claims. See 28
U.S.C. § 2244(b); Rhines v. Weber, 544 U.S. 269,271 (2005). Further, upon an initial review of
the petition, the claims do not seem to be legally or factually complicated. Finally, the Court
needs to understand the respondent's position before determining whether the appointment of
counsel would be merited. Because the petition has not even been served pending resolution of
the filing fee, the respondent has not yet filed a response.
Accordingly, the motion for appointment of counsel is DENIED WITHOUT
PREJUDICE to renewal after the petition has been served and the respondent has responded to
the petition.

SO ORDERED
DAVID H. ENNESSY
UNITED STATES MAGISTRA

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