AVILA v. JOHNSON et al

Filing 91

MEMORANDUM OPINION & ORDER denying 61 Petitioner's motion for the appointment of pro bono counsel; granting in part and denying in part 71 Petitioner's motion for leave to file a supplemental letter brief and application for emergency relief; Respondents may, but are not required to, file a supplement to their answer within 30 days of this Order. Signed by Judge Noel L. Hillman on 3/31/2023. (alb, N.M.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ABDIEL F. AVILA,
:
:
Petitioner,
:
Civ. No. 18-9422 (NLH)
:
v.
:
MEMORANDUM OPINION & ORDER
:
:
THE ATTORNEY GENERAL OF
:
THE STATE OF NEW JERSEY,
:
et al.,
:
:
Respondents.
:
______________________________:
APPEARANCE:
Abdiel F. Avila
788891C
New Jersey State Prison
PO Box 861
Trenton, NJ 08625
Petitioner Pro se
Grace C. MacAulay, Camden County Prosecutor
Jason Magid, Assistant Prosecutor
Office of the County Prosecutor
200 Federal Street
Camden, NJ 08103
Attorneys for Respondent
HILLMAN, District Judge
Petitioner is proceeding pro se with an amended petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Presently before the Court are Petitioner’s motion for the
appointment of pro bono counsel, ECF No. 61, and motion for
leave to file a supplemental letter brief and application for

emergency relief, ECF No. 71.

Respondents oppose the second

motion to the extent it requests relief in the form of an order
granting the amended petition.
on their answer.

ECF No. 74.

They otherwise rely

Id.

The Court will grant Petitioner’s motion to file his
supplemental materials, but otherwise deny the motion.
Petitioner’s letter brief and accompanying exhibits partially
relate to his claim that his sentence is illegal, so the Court
will permit him to file these documents and arguments.
Respondents may, but are not required to, file a supplement to
their answer in response.
The motion is moot to the extent it objects to the habeas
proceedings being sealed as the Court lifted the seal on March
20, 2023.

ECF No. 88.

Petitioner’s continued objection to the

Camden County Prosecutor’s Office representing the New Jersey
Attorney General’s Office is meritless.

See ECF No. 71 at 26.

The Attorney General’s Office designated the Camden County
Prosecutor’s Office to represent its interests, ECF No. 15, and
this Court has already dismissed this argument as meritless, ECF
No. 44 at 10-11.

Accordingly, the motion is denied in part.

There is no ‘automatic’ constitutional right to counsel in
a federal habeas corpus proceeding.”

Reese v. Fulcomer, 946

F.2d 247, 263 (3d Cir. 1991), superseded on other grounds by
statute, 28 U.S.C. § 2254.

However, 18 U.S.C. § 3006A(a)(2)(B)
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provides that the Court has discretion to appoint counsel for
financially eligible petitioners where “the court determines
that the interests of justice so require . . . .”
Before appointing counsel, a court “must first decide if
petitioner has presented a nonfrivolous claim and if the
appointment of counsel will benefit the petitioner and the
court.

Factors influencing a court’s decision include the

complexity of the factual and legal issues in the case, as well
as the pro se petitioner’s ability to investigate facts and
present claims.”

Reese, 946 F.2d at 263-64.

The amended

petition survived initial review under Rule 4 of the Rules
Governing Section 2254 Cases; therefore, it is not frivolous on
its face.

However, the Court concludes the appointment of

counsel is not warranted.
The Court denied Petitioner’s prior motion for the
appointment of counsel.

ECF No. 45.

The Court concludes that

there has not been a change in circumstances requiring the
appointment of counsel.

Even assuming that Petitioner’s claims

had some merit, the issues raised in the petition are not
especially complex such that the appointment of counsel would be
necessary to aid the Court or Petitioner.

Petitioner is a

prolific filer, amply demonstrating his ability to present his
case.

Therefore, Court will deny the motion for counsel.

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The

Court reserves the right to sua sponte reconsider this decision
should circumstances change.
THEREFORE, IT IS on this

31st

day of

March , 2023

ORDERED that Petitioner’s motion for the appointment of pro
bono counsel, ECF No. 61, be, and the same hereby is, DENIED
WITHOUT PREJUDICE; and it is further
ORDERED that Petitioner’s motion for leave to file a
supplemental letter brief and application for emergency relief,
ECF No. 71, be, and the same hereby is, GRANTED IN PART.

The

motion is granted to the extent that Petitioner may file his
supplemental documents.

The motion is otherwise DENIED; and it

is further
ORDERED that Respondents may, but are not required to, file
a supplement to their answer within 30 days of this Order; and
it is finally
ORDERED that the Clerk shall send Petitioner a copy of this
Order by regular mail.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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