Gross v. Superintendent Five Points Correctional Facility

Filing 8

ORDER denying 4 Motion to Appoint Counsel. Signed by Hon. Leslie G. Foschio on 12/21/2011. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DOUGLAS GROSS,
Petitioner,

ORDER

v.
11-CV-927F
SUPERINTENDENT,
FIVE POINTS CORRECTIONAL FACILITY,
Respondent.

Petitioner has applied to the Court for appointment of counsel. Under 28 U.S.C.
§ 1915(e)(1), the Court may appoint counsel to assist indigent litigants. See, e.g.,
Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir.
1988). Moreover, pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases in
the United States District Courts, counsel may be appointed at any stage of the
proceeding “if the interests of justice so require.”
It is clear that prisoners have no constitutional right to counsel when bringing
collateral attacks upon their convictions. Pennsylvania v. Finley, 481 U.S. 551, 555,
107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109
S.Ct. 2765, 106 L.Ed.2d 1 (1989). Habeas petitioners who qualify under the Criminal
Justice Act, however, are entitled to counsel if an evidentiary hearing is required, Rules
Governing Section 2254 Cases in the United States District Courts, Rule 8(c), see
Graham v. Portunodo, 506 F.3d 105, 107, (2d Cir., Oct. 3, 2007), as are indigent
petitioners who seek to vacate or set aside a sentence of death. 21 U.S.C. §
848(q)(1)(4)(B); McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 2571, 129 L.Ed.2d
666 (1994).

Appointment of counsel is within the judge's discretion, see In re Martin-Trigona,
737 F.2d 1254, 1260 (2d Cir. 1984). The Court has reviewed the facts presented
herein in light of the factors required by law. Specifically, there is no showing at this
time that an evidentiary hearing is required, nor is petitioner seeking to vacate or set
aside a sentence of death.
In addition, petitioner has not provided the Court with any information which
indicates that the interests of justice require the appointment of counsel at this time.
The petition is based on the following claims: 1) denial of defense counsel’s application
for a missing witness charge, 2) insufficient evidence to support conviction, and , 3) trial
court’s limitation of cross-examination. It does not appear at this time that petitioner
needs the assistance of counsel to present these claims, which appear to be ones
which can be addressed and reviewed solely by means of the record already before the
Court.
Based on this review, petitioner's motion for appointment of counsel is denied
without prejudice at this time. It is the petitioner's responsibility to retain an attorney or
press forward with this proceeding pro se. 28 U.S.C. § 1654.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: December 21, 2011
Buffalo, New York

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