Civitarese v. Marchilli

Filing 29

Magistrate Judge David H. Hennessy: ORDER entered denying 18 Motion to Appoint Counsel. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MAURICE CIVITARESE,
Petitioner,
v.
RAYMOND MARCHILLI,
Respondent.

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Civil Action No. 16-40129-TSH

ORDER PUSUANT TO 18 U.S.C. § 3006A(a)
July 11, 2017
Hennessy, M.J.
This matter was referred to the undersigned by District Judge Hillman for a decision on
Petitioner Maurice Civitarese’s motion for appointed counsel in connection with his habeas corpus
petition. (Docket #27). For the reasons stated below, the motion (Docket #18) is denied.
I.

Background

Pro se petitioner Civitarese is in custody in the North County Correctional Institution in
Gardner, Massachusetts. (Docket #1). After a jury sitting in Middlesex County Superior Court
found Civitarese guilty of four counts of Rape of a Child and other offenses, Superior Court
Associate Justice Thomas F. Billings sentenced Civitarese to serve nine to thirteen years for Rape
of a Child and, for other offenses of conviction, imprisonment to run concurrently and probation.
(Docket #1; Docket #26 at 3-4). Civitarese filed a motion for a new trial alleging ineffective
assistance of counsel. (Docket #1 at 10-11; Docket #26 at 4). The trial court held an evidentiary
hearing at which Civitarese and his trial attorney testified. (Docket #26 at 4). The motion was

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denied and consolidated with his pending appeal. (Docket #26 at 4; Docket #1 at ¶ 11). The
Massachusetts Appeals Court affirmed Civitarese’s conviction and the denial of his motion for a
new trial. (Docket # 26 at 4; Docket #1 at ¶ 9)
Civitarese filed the instant petition on September 12, 2016, alleging that trial counsel was
constitutionally ineffective for (1) promising in his opening statement, and then failing during trial,
to present third party culprit evidence; and (2) advising Civitarese not to testify in his own behalf.
(Docket #1 at ¶ 12). The Commonwealth filed an answer and supplemental answer which included
the transcripts of the proceedings and other filings. (Docket # 15 and #17). On January 3, 2017,
Civitarese filed the instant motion for appointment of counsel. (Docket # 18). While the motion
was pending, Judge Hillman entered a scheduling order directing Civitarese to file his
memorandum of law in support of the petition on or before March 15, 2017, and for the
Commonwealth to respond sixty days later. (Docket #22). Civitarese thereafter moved to enlarge
the time to file his memorandum, which Judge Hillman allowed. (Docket #23 and #24). On
March 27, 2017, Civitarese filed his memorandum of law, and the Commonwealth filed its
responsive memorandum on April 21, 2017. (Docket #25 and #26). On June 16, 2017, the court
sent Civitarese a financial affidavit to complete in support of his motion for appointed counsel.
See 18 U.S.C. § 3006A. On June 29, 2017, the court received Civitarese’s executed financial
affidavit. (Docket #28).
II.

Discussion

The Sixth Amendment right to counsel does not apply to habeas proceedings.

See

Pennsylvania v. Finley, 481 U.S. 551, 555-67 (1987). In Finley, the Court held that there is no
constitutional right to counsel in state collateral proceedings after exhaustion of direct appellate
review. See id.; see also Coleman v. Thomson, 501 U.S. 722, 756-57 (1991) (affirming Finley

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and holding that petitioner did not have a constitutional right to counsel on appeal from state habeas
trial court judgment).

Accordingly, the Criminal Justice Act provides in relevant part that a

magistrate judge may appoint counsel for a financially eligible person seeking relief under
Section 2254 if “the interests of justice so require.” See 18 U.S.C. § 3006A(a)(2)(B). In
determining when the interests of justice require appointment of counsel, courts consider whether
petitioner has presented a colorable claim, the complexity of the legal issues, the intricacy of the
factual issues, and the petitioner’s ability to represent himself.

See United States v.

Guadalupe-Quinones, 65 Fed. Appx. 329, 333(1st Cir. 2003) (finding these factors to be satisfied
and directing district court to appoint counsel should defendant pursue his Sixth Amendment claim
due to a conflict of interest of counsel); United States v. Maia, 7 F.3d 1058, 1063-64 (1st Cir.
1993) (where there is a fair likelihood of success on a constitutional claim, the claim is factually
complex and legally intricate, the facts are largely undeveloped and petitioner is severely
hampered in his ability to investigate them, this seems to be “the rare section 2255 case in which
the appointment of counsel is warranted”); Nachtigall v. Class, 48 F.3d 1076, 1081-82 (8th Cir.
1995) (no abuse of discretion in denying habeas petitioner appointed counsel when petition not
factually or legally complex and petitioner capable of investigating and presenting claims). On
the other hand, 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.”).
Applying the foregoing factors here, I find that the interests of justice do not require the
appointment of counsel. As noted, Civitarese claims that trial counsel was constitutionally
ineffective for (1) promising in his opening statement, and then failing during trial, to present third

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party culprit evidence; and (2) advising Civitarese not to testify in his own behalf. I assume for
purposes of analysis that Civitarese has presented a colorable claim. There is no request, or
apparent need, for an evidentiary hearing. Indeed, the factual record appears to be well-developed
as a result of Civitarese’s motion for a new trial, the resolution of which involved an evidentiary
hearing at which both he and his trial attorney testified. (Docket #26 at 4). This record is fully
available to Civitarese: in its supplemental answer, the Commonwealth has manually filed the
relevant state court briefs, post-conviction motions, opinions, and trial transcripts as required by
Rule 5 of the Rules Governing Section 2254 Cases. (Docket #15 and 17). Thus, there does not
appear to be a need for discovery or further factual development. In addition, as far as the factual
predicate for the claims raised in Civitarese’s petition is concerned, it is not complicated. In his
petition, Civitarese has succinctly articulated how, in his view, counsel’s performance fell below
an objective standard of reasonableness. Relatedly, I also find that the legal issues are not complex
or beyond petitioner. Petitioner has raised these same claims in the trial court on his motion for a
new trial and before the Massachusetts Appeals Court. They are clearly and succinctly articulated
in Civitarese’s petition and memorandum of law. Indeed, in conducting this litigation, I note that
Civitarese’s petition is meticulous in its detail and clearly written, that Civitarese has some
familiarity with court process, since Civitarese knew, for instance, to file a motion for an
enlargement of time and similarly recognized in his motion for appointment of counsel that it was
discretionary. (Docket #18) (“[T]he Criminal Justice Act gives this Court the discretion to appoint
counsel where, as here, the interests of justice so require.”). Finally, I note that the petition and
opposition have been briefed and but for Civitarese’s request for oral argument, is ripe for
adjudication. Accordingly, I find that Civitarese is positioned to prosecute his Sixth Amendment
claims competently and effectively.

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III.

Conclusion

The motion for appointment of counsel is therefore DENIED.

It is so ordered.
DATED: July 11, 2017

/s/ David H. Hennessy
David H. Hennessy
U.S. Magistrate Judge

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