Wallace v. LaClair
MEMORANDUM & ORDER: For the reasons set forth herein, the Court concludes that "the interests of justice" do not require the appointment of counsel in this case. The legal issues implicated by petitioner's claims, while import ant, are not so complex as to require appointment of counsel. Accordingly, at this time, petitioner's motion for appointment of counsel is denied without prejudice. SO ORDERED by Chief Judge Carol Bagley Amon, on 9/10/2012. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IN CLERK'S OFFICE0 N.Y.
DISTRICT COURT E. .
SEP 1 0 2012
NOT FOR PUBLICATION
MEMORANDUM & ORDER
D. LACLAIR, Superintendent, Franklin Correctional
AMON, Chief United States District Judge:
Petitioner O'Neil Wallace, pro se, seeks appointment of counsel in this federal habeas
proceeding. For the reasons stated below, the Court will not appoint counsel at this time.
STANDARD OF REVIEW
There is no constitutional right to representation by counsel in habeas proceedings.
Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (citing United States e)( reI. Wissenfeld v.
Wilkins, 281 F.2d 707, 715 (2d Cir. 1960)). However, a court may, in its discretion, appoint
counsel where "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). The standard for
the appointment of counsel in civil cases, including habeas corpus proceedings, is set forth in
Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986); see also Cooper v. A. Sargenti Co.,
877 F.2d 170, 172 (2d Cir. 1989). The threshold inquiry is whether the petitioner's position
appears to have some chance of success. See Hodge, 802 F .2d at 60-61; see also Burgos v.
Hopkins, 14 F.3d 787,789 (2d Cir. 1994). Only then should a court consider other criteria. See
Hodge, 802 F.2d at 61-62. The other factors include:
[Petitioner's] ability to obtain representation independently, and his ability to handle the
case without assistance in the light of the required factual investigation, the comple)(ity of
the legal issues, and the need for e)(pertly conducted cross-e)(amination to test veracity.
Cooper, 877 F.2d at 172.
The petitioner was convicted of manslaughter in the second degree, N.Y. Penal law
§125.15, for pointing a gun at his wife, Beverly Wallace, and shooting her. The defendant's
theory at trial was that Mrs. Wallace's death was not intentional but an accident: that Mr.
Wallace picked up the gun to get his wife's attention, not with the intent to hurt or kill her, and
that the gun went off by accident during an argument. (See Trial Tr. at 419-427.)
The petitioner raises the following claims for relief: (1) the evidence was legally
insufficient to support his conviction; (2) the trial court erred in permitting into evidence the
transcript of a 911 call placed by the victim's mother; and (3) trial counsel was ineffective for (a)
failing to pursue a defense that medical malpractice was an intervening cause of the victim's
death, and (b) failing to preserve for appellate review a claim that there was insufficient evidence
to support his conviction.
The Court has reviewed the petition, the parties' submissions, and the record and
concludes that petitioner's claims are not likely to be of merit. As to the sufficiency of the
evidence claim, the Court's preliminary review of the record indicates that there was ample basis
for the jury to reject the defendant's claim that the shot was accidental and rationally conclude
that Mr. Wallace shot his wife intentionally, or at least that Mr. Wallace consciously disregarded
a substantial and unjustifiable risk of death when he pointed the gun at his wife, even if he did
not intend to shoot it.
As to the remaining claims, the Court finds that they are not likely to succeed on the
merits. Moreover, even if the petitioner could establish that an evidentiary error was made at
trial, or that his counsel was ineffective, any such error or deficient performance would likely
have been harmless in light of the overwhelming evidence that Mr. Wallace pointed a loaded gun
at his wife. The Court finds it unlikely that the exclusion of the 911 call or the presentation of a
medical malpractice defense would have altered the jury's conclusion as to whether Mr. Wallace
fired the gun intentionally. Finally, the record indicates that the petitioner was not prejudiced by
his counsel's failure to preserve his sufficiency of the evidence claim because the Appellate
Division chose to address the claim on the merits on direct appeal.
For the reasons set forth herein, the Court concludes that "the interests of justice" do not
require the appointment of counsel in this case. The legal issues implicated by petitioner's
claims, while important, are not so complex as to require appointment of counsel. Accordingly,
at this time, petitioner's motion for appointment of counsel is denied without prejudice.
Dated: Brooklyn, New York
S/Chief Judge Amon
'".( ==- --
Chief United States District Judge
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