SODANO v. UNITED STATES OF AMERICA

Filing 36

OPINION filed. Signed by Judge Peter G. Sheridan on 07/23/2019. (jmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES SODANO,
Petitioner,

:

Civ. No. 14-7630 (PGS)

v.

UNITED STATES OF AMERICA,

OPINION

Respondent.

PETER G. SHERIDAN, U.S.D.J.
1.

This matter comes before the Court on Petitioner James Sodano’s motion for the

appointment of pro bono counsel and motion for an extension of time to submit materials
relating to his motion under 28 U.S.C.

§

2255. (ECF Nos. 33 & 34). Respondent United States

opposes the motion for appointment of counsel as premature but takes no position on Petitioner’s
request for an extension of time. (ECF No. 35).
2.

The Court originally denied Petitioner’s

§ 2255

motion on October 16, 2017. (ECF

No. 24). On May 3, 2019, the United States Court of Appeals fcr the Third Circuit issued a mandate
reserving the decision in part and remanding for consideration of Petitioner’s ineffective assistance
of counsel claim under Lajier v. Cooper, 566 U.S. 156 (2012). Sodano v. United States ofAincrica,
No. 17-3467 (3d Cir. mandate issued May 3, 2019) (ECF No. 29). The Court reopened the matter
and ordered the parties to brief the Lafler issue. (ECF No. 32).
3.

Petitioner thereafter submitted his motion for the appointment of counsel and

motion for an extension of time. (ECF Nos. 33 & 34). The United States, having already submitted

its position on Lafler, (ECF No. 31), opposed the motion for appointment of counsel as premature,
(ECF No. 35).
4.

There is no Sixth Amendment right to appointment of counsel in habeas

proceedings. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) (“our cases establish that the right to appointed counsel extends to the first
appeal of right, and no further”); Parham v. Johnson, 126 F.3d 454, 456—57 (3d Cir. 1997) (holding
that there is no statutory or constitutional right of counsel conferred upon indigent civil litigants).
The Court may appoint counsel in a
18 U.S.C.
5.

§

§

2255 proceeding where the ‘interests ofjustice so require.”

3006A(a) (2)(B).
“Under these guidelines, the district court must first decide if the petitioner has

presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and
the court.” Reese v. Fulcomer, 946 F.2d 247, 263—64 (3d Cir. 1991). Factors influencing a court’s
decision include: “(i) the likelihood of success on the merits; (ii) the complexity of the legal issues
raised by the complaint; and (iii) the ability of the prisoner to investigate and present the case.”
Neeld v. New Jersey, 2012 WL 603293,

*

1 (D.N.J. Feb. 22, 2012) (quoting Paul v. Attorney Gen.

ofState ofNJ., 1992 WL 184358, *1 (D.N.J. July 10, 1992)).
6.

Petitioner asserts an attorney is warranted due to the Third Circuit’s mandate

remanding the Lafler claim to this Court. (ECF No. 33 at 3). The mere fact of a remand does not
warrant pro bono counsel.
7.

The Court agrees with the United States that appointment of an attorney is

premature. Petitioner does not argue in his motion that he is incapable of presenting his

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arguments pro Se. Indeed, Petitioner has ably presented his matter pro se both in this Court and
in the Third Circuit.’
8.

The United States argues that the Lafler claim may be resolved on the record

before the Court without an evidentiary hearing. Petitioner’s response to the United States’
arguments will enable the Court to determine whether an evidentiary hearing is necessary and
therefore whether an attorney is necessary.
9.

Therefore, the motion for the appointment of pro bono counsel is denied without

prejudice. (ECF No. 33). The Court shall reassess Petitioner’s motion at the completion of
briefing.
10.

The motion for an extension of time is granted. (ECF No. 34). Petitioner may

submit his arguments within 45 days of this Opinion and Order.
11.

An appropriate order follows.

)lJOL%

ic.q1,

PETER G. SHERIDAN
United States District Judge

Petitioner submitted his application for a certificate of appealability to the Third Circuit pro Se.
The Court of Appeals appointed an attorney after granting the certificate of appealability. See
Sodano v. United States ofAmerica, No. 17-3467.
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