Robinson v. New York State Division of Parole

Filing 10

MEMORANDUM & OPINION: Petitioner's 9 motion for an extension of time to file his response to the State's opposition to his petition is granted to the extent that it is granted until 12/17/2012. His 9 motion for the appointment of counsel is denied. SO ORDERED by Judge Eric N. Vitaliano, on 11/30/2012. C/mailed. (Latka-Mucha, Wieslawa)

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IN CLERK'S OFFICI'

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U.S. DISTRICT COl i"<'t' :; t' "" ~.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STERLING V. ROBINSON,

* DEC 0 6 2012

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BROOKLYN OFFICE

MEMORANDUM & OPINION
Petitioner,
11-cv4454 (ENV)

-againstNEW YORK STATE DIVISION OF PAROLE,
Respondent.
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VIT ALIANO, D.J.

On September 8, 2011, Sterling V. Robinson, acting on his own behalf, petitioned
the Court for a writ of habeas corpus challenging his conviction for third degree criminal
possession of a weapon and operating a motor vehicle while under the influence of alcohol.
The State responded on October 16, 2012. Petitioner's reply is due December 10, 2012. He
now seeks (1) an unspecified eJ(tension of time to file his reply and (2) appointment of
counsel.
The deadline to file petitioner's reply is eJ(tended until January 4, 2013, and
petitioner shall file his papers on or before that date.
Petitioner's request for counsel is denied.
Unlike criminal cases, habeas proceedings do not afford a state prisoner a
constitutional right to representation by counsel. See Wright v. West, 505 U.S. 277, 293
(1992).1 However, under 28 U.S.C. § 1915(e)(1), a "court may request an attorney to
represent any person unable to afford counsel." Likewise, under 18 U.S.C. § 3006A(2)(B),
a court may appoint counsel to represent a financially eligible habeas petitioner where it
1 However, if an evidentiary hearing is necessary, Rule 8(c) of the Rules Governing § 2254
Cases in the United States District Courts requires a court to appoint counsel to represent a
habeas petitioner who would otherwise qualify for representation under 18 U.S.C. §
3006A(2)(B).
1

"determines that the interests of justice so require." Courts enjoy broad discretion in
determining .whether to appoint counsel for civil litigants, "subject to the requirement that
it be guided by sound legal principle." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 171-72
(2d Cir. 1989) (internal quotations omitted). Moreover, because "every assignment of a
volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available
for a deserving cause," courts must carefully consider whether a request for counsel is
warranted. Id. at 172.
Accordingly, when considering such a request, the threshold inquiry under 28
u.S.C. § 1915(e)(1) is whether there is or is likely to be merit to the petitioner's position.

See, e.g., Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986) (a district court must "first
determine whether the indigent's position seems likely to be of substance" before
appointing counsel); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)
(holding that "even though a claim may not be characterized as frivolous, counsel should
not be appointed in a case where the merits of the indigent's claim are thin and his chances
of prevailing are therefore poor"). Only if this threshold requirement of substance is met
should the court consider the following secondary factors:
[T]he indigent's ability to investigate the crucial facts, whether conflicting
evidence implicating the need for cross-examination will be the major proof
presented to the fact finder, the indigent's ability to present the case, the
complexity of the legal issues and any special reason in that case why
appointment of counsel would be more likely to lead to a just determination.

Hodge, 802 F.2d at 61-62. Similar standards apply in determining whether, in the interest
of justice, to appoint counsel for a petitioner in a habeas proceeding. See, e.g., Zimmerman

v. Burge, 492 F. Supp. 2d 170, 176 n.1 (E.D.N.Y. 2007) (citing Cooper, 877 F.2d at 172);
Cary v. Ricks, No. 00-CV-8926, 2001 WL 314654, at *4 (S.D.N.Y. Mar. 30,2001) (citing
Hodge, 802 F.2d at 61-62).
2

Upon a preliminary review of the written submissions made thus far, the Court
finds that petitioner has not satisfied, nor is he likely to satisfy, the threshold requirement
of meritoriousness. Even if the threshold requirement were met, petitioner would still fall
short of meeting the secondary factors. First, he is able to present the facts of his case with
the assistance of his translator. Second, there is no indication that this matter involves any
particularly complex or novel legal issues. Finally, petitioner suggests no special reason
why appointment of counsel in this case would be more likely to lead to a just
determination.
Under these circumstances, the Court finds that the interests of justice do not
necessitate appointment of counsel to represent petitioner at this time.
CONCLUSION
For the reasons outlined above, petitioner's motion for an extension of time to file
his response to the State's opposition to his petition is granted to the extent that it is
granted until December 17,2012. His motion for the appointment of counsel is denied.

SO ORDERED.

/S/ Judge Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge
Dated: Brooklyn, New York
November 30, 2012

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