MOORE v. COMMONWEALTH et al

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ROBERT F. KELLY ON 7/21/14. 7/21/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

THOMAS MOORE,
Petitioner,

No. 14-1148

v.

COMMONWEALTH OF
PENNSYLVANIA, et al.,
Respondent.

MEMORANDUM
ROBERT F. KELLY, Sr. J.

JULYV,2014

Presently before this Court is Petitioner, Thomas Moore's ("Petitioner"), Motion for
Appointment of Counsel. Petitioner filed a Petition for Writ of Habeas Corpus (the "Petition")
pursuant to 28 U.S.C. § 2254 on February 24, 2014. On March 7, 2014, we dismissed the
Petition after determining that it was a successive petition, and we lacked jurisdiction to consider
the merits of the petition without Petitioner first seeking and receiving approval from the United
States Court of Appeals for the Third Circuit ("Third Circuit"). See Benchoff v. Colleran, 404
F.3d 812, 816 (3d Cir. 2005). Absent such authorization, the District Court is not permitted to
consider the merits of a subsequent petition. 28 U.S.C. § 224(b)(3)(A); Robinson v. Johnson,
313 F.3d 128, 139-40 (3d Cir. 2002). Because Petitioner did not obtain an order from the Third
Circuit allowing this Court to consider the merits of this instant successive petition, we dismissed
it for lack of subject matter jurisdiction.

Subsequently, on March 17, 2014, Petitioner filed a Notice of Appeal in the Third Circuit
appealing our decision. That appeal is currently pending. On June 20, 2014, Petitioner filed the
instant Motion requesting appointment of counsel.
We first note that there is no constitutional right to counsel in a federal habeas corpus
proceeding. See Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991), cert. denied, 503 U.S. 988
(1992), superseded on other grounds by statute, 28 U.S.C. § 2254(d). Appointment of counsel in
a habeas proceeding is mandatory only if the district court determines that an evidentiary hearing
is required, and the petitioner qualifies to have counsel appointed under 18 U.S.C. § 3006A. See
Rule 8(c) of the Rules Governing Section 2254. Petitioner is not entitled to an evidentiary
hearing; therefore, mandatory appointment of counsel is not required.
Otherwise, a court may exercise its discretion in appointing counsel to represent a habeas
petitioner, who is "financially eligible" under the statute, if the court "determines that the
interests of justice so require." 18 U.S.C. § 3006A(a)(2); Reese, 946 F.2d at 263-64.
Here, we have already determined that the Petition is successive, and we do not have
jurisdiction to consider its merits. In addition, the issue on appeal before the Third Circuit
regarding whether the Petition is successive is certainly not legally complex. Accordingly,
counsel will provide no benefit to Petitioner or the Court, and the interests of justice do not
require appointment of counsel. Thus, the Motion for appointment of counsel is denied.
An appropriate Order follows.

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