Blair v. Graham
Filing
22
DECISION AND ORDER: Petitioner's motions 12 and 15 for appointment of counsel are denied without prejudice. Petitioner's reply to Respondent's response 19 and 20 must be filed within 60 days of the date of this Order, or the p etition will be considered on the papers that have already been submitted to the Court. A copy of the Decision and Order has been mailed to Leslie Blair, 08B0587, SOUTHPORT CORRECTIONAL FACILITY, Box 2000, Pine City, NY 14871-2000 SO ORDERED. Signed by Hon. Richard J. Arcara on 8/31/16. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Leslie Blair,
Petitioner,
DECISION AND ORDER
13-CV-1046A
v.
Harold H. Graham,
Respondent.
Petitioner, who seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, has
made two motions for appointment of counsel. See Docket Nos. 12 and 15. Pursuant
to 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). It is clear, however, that prisoners have no constitutional right to
counsel when bringing collateral attacks upon their convictions. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 U.S. 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. Portuondo, 506 F.3d 105 (2d Cir.
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 (1994).
Appointment of counsel is within the court’s discretion, see In re Martin-Trigona,
737 F.2d 1254, 1260 (2d Cir. 1984). The Court has reviewed the facts presented in the
petition, and 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 claims concerning the evidence supporting Petitioner’s
conviction, his trial counsel’s performance, his appellate counsel’s performance,
remarks made by the trial court, and the validity of the underlying indictment. It does
not appear at this time that petitioner needs the assistance of counsel to present these
claims, which appear to be claims which can be addressed and reviewed solely by
means of the record already before the Court.
Based on its review, Petitioner's motions for appointment of counsel are 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.
Finally, the Respondent filed his response to the petition on July 13, 2016. The
Petitioner must file his reply within 60 days of the date of this Order or the petition
will be considered on the papers that have already been submitted to the Court.
IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: August 31, 2016
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