Harnage v. Haggett

Filing 6

MEMORANDUM & ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED and re: 3 Motion to Appoint Counsel is DENIED. The Court certifies that any appeal would not be taken in good faith and in forma pauperis status is DENIED for purpose of an appeal. Ordered by Judge Joanna Seybert on 10/25/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JOHN C. HARNAGE, III,
Petitioner,
-against-

MEMORANDUM & ORDER
13-CV-4598(JS)

SUPERINTENDENT KATHLEEN G. GERBING,
Otisville Correctional Facility,1
Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
John C. Harnage, III, pro se
10-A-3318
Otisville Correctional Facility
P.O. Box 8
Otisville, NY 10963
For Defendant:

No appearance

SEYBERT, District Judge:
On August 9, 2013, incarcerated pro se Petitioner John C.
Harnage, III (“Petitioner”) filed a Petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

The Petition is accompanied

by an application to proceed in forma pauperis and an application
for the appointment of pro bono counsel to represent Petitioner in
this case.

Upon review of Petitioner’s declaration in support of

his application to proceed in forma pauperis, the Court finds that
Petitioner’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Accordingly, Petitioner’s application to proceed in forma pauperis

1

The Clerk of the Court is directed to amend the caption to
reflect that the proper Respondent is Superintendent Kathleen G.
Gerbing, Otisville Correctional Facility.

is GRANTED.

However, for the reasons that follow, his application

for the appointment of pro bono counsel is DENIED.
DISCUSSION
“[T]here is no constitutional right to representation by
counsel in habeas corpus proceedings.”

Green v. Abrams, 984 F.2d

41, 47 (2d Cir. 1993) (internal quotation marks and citation
omitted).

Rather, the appointment of counsel in habeas corpus

proceedings

is

governed

by

18

U.S.C.

§

3006A(a)(2)(B)

which

provides, in pertinent part, that “[w]henever . . . the court
determines that the interests of justice so require, representation
may be provided for any financially eligible person who--. . . is
seeking relief under section . . . 2254 . . . of title 28.”

18

U.S.C. § 3006A(a)(2)(B).
“The standard for 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).”

Razzoli v. U.S.

Parole Comm’n, No. 10-CV-1842, 2010 WL 5027548, at *2 (E.D.N.Y.
Dec. 2, 2010); see also Lawson v. Taylor, No. 10–CV–0477, 2011 WL
839509, at *1 (E.D.N.Y. Mar. 2, 2011).

Under this standard, the

threshold inquiry is whether there is substance to the litigant’s
position.

Hodge, 802 F.2d at 61 (holding that “the district judge

should first determine whether the indigent’s position seems likely
to be of substance”). “[C]ounsel should not be appointed in a case
where the merits of the indigent’s claim are thin and his chances
2

of prevailing are therefore poor.”

Carmona v. U.S. Bureau of

Prisons, 243 F.3d 629, 632 (2d Cir. 2001).
If the Court finds that the litigant’s claim is of
substance, it should next consider the following 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; see also Carmona, 243 F.3d at 632
(holding that “only after an initial finding that a claim is likely
one of substance will [the court] consider secondary factors such
as the factual and legal complexity of the case, the ability of the
litigant to navigate the legal minefield unassisted, and any other
reason why in the particular case appointment of counsel would more
probably lead to a just resolution of the dispute”).

However,

those factors are not restrictive and “[e]ach case must be decided
on its own facts.”
A

Hodge, 802 F.2d at 61.

district

court

possesses

broad

discretion

when

determining whether appointment is appropriate, “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)
(quoting Jenkins v. Chem. Bank, 721 F.2d 876, 879 (2d Cir. 1983)).
The Court has reviewed Petitioner’s application together with his
3

Petition

and

warranted.

finds
Even

that

assuming

the

appointment

that

of

Petitioner

counsel

not

satisfy

could

is

the

threshold requirement, consideration of the remaining Hodge factors
indicate that Petitioner has adequately and competently set forth
his claims in his Petition and appears capable of preparing and
presenting his case.

In addition, the legal issues presented in

the Petition do not appear to be particularly complex nor is there
a special reason to appoint counsel in this case.

Accordingly,

Petitioner’s motion for appointment of pro bono counsel is DENIED.
It is Petitioner’s responsibility to retain an attorney or press
forward with this case pro se.

See 28 U.S.C. § 1654.

CONCLUSION
Petitioner’s application for the appointment of pro bono
counsel is DENIED and his application to proceed in forma pauperis
is GRANTED. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith and therefore in
forma pauperis status is DENIED for purpose of an appeal. Coppedge
v. United States, 269 U.S. 438, 444-45 (1962).

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: October
25 , 2013
Central Islip, New York

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