Deeks v. Sommers et al

Filing 8

ORDER: IT IS HEREBY ORDERED that 7 MOTION to Appoint Counsel filed by Travis Deeks is DENIED. Signed by Honorable Matthew W. Brann on 5/16/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRAVIS DEEKS,
Petitioner
v.
JACK SOMMERS
Respondent

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CIVIL NO. 4:17-CV-362
(Judge Brann)

ORDER
MAY 16, 2017
Background
Travis Deeks, an inmate presently confined at the State Correctional
Institution, Waymart, Pennsylvania (SCI-Waymart) filed this pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Waymart
Superintendent Jack Sommers. Petitioner challenges the calculation of his parole
violator sentence by the Pennsylvania Board of Probation and Parole (Parole
Board). Service of the Petition was previously ordered.
Respondent has filed a response to the petition and a supporting
memorandum. Deeks thereafter filed a reply. Presently pending is Petitioner’s
motion seeking appointment of counsel. See Doc. 7.

1

Although pro se litigants have no “automatic” constitutional or statutory
rights to appointment of counsel in a federal habeas corpus proceeding, a court
does have broad discretionary power to appoint counsel under 18 U.S.C. §
3006A(a)(2). Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991); Morrison v.
Duckworth, 898 F.2d 1298, 1300-01 (7th Cir. 1990); Hooks v. Wainwright, 775
F.2d 1433, 1438 (11th Cir. 1985). Specifically, any person seeking relief under 28
U.S.C. §§ 2241 or 2254 may be provided counsel, “whenever the United States
magistrate or the court determines that the interests of justice so require” and such
person is “financially eligible.” 18 U.S.C. § 3006A(a)(2) (2011).
A court must consider several factors in deciding whether the “interests of
justice require” the appointment of counsel for a petitioner in a habeas corpus
proceeding, including the complexity of the factual and legal issues in the case and
the pro se petitioner's ability to investigate facts and present claims. Reese, 946
F.2d at 263 (citing Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)); see
also Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).1

1

The Tabron court noted that “... the district court must consider as a threshold matter
the merits.” Tabron, 6 F.3d at 155. Next, if a claim has arguable merit, “ability to present his or
her claim is, of course, a significant factor that must be considered in determining whether to
appoint counsel.” Id. at 156. If a litigant “with a claim of arguable merit is incapable of
presenting his or her case, serious consideration should be given to the appointing of counsel.”
Id. at 156.
2

Under Tabron, a district court’s decision whether to appoint counsel in a
civil rights action should be “informed” by a consideration of the following
additional factors: the “difficulty of the particular legal issues;” “the degree to
which factual investigation will be required and the ability of the indigent plaintiff
to pursue such investigation;” whether a case is likely to turn on credibility
determinations; whether expert testimony is required; and whether the litigant is
capable of retaining counsel on his or her own behalf. Id. at 156, 157 n. 5. The
United States Court of Appeals for the Third Circuit has reiterated that the criteria
developed in Tabron should be employed in addressing the appointment of counsel
issue. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citation omitted).
With respect to federal habeas corpus actions, it has been held that there was
no abuse of discretion in failing to appoint counsel when no evidentiary hearing
was required and the issues in the case had been narrowed, see Terrovona v.
Kincheloe, 912 F.2d 1176, 1177 (9th Cir. 1990), cert. denied, 499 U.S. 979 (1991),
or the issues were “straightforward and capable of resolution on the record,”
Ferguson v. Jones, 905 F.2d 211, 214 (8th Cir. 1990), or the petitioner had “a good
understanding of the issues and the ability to present forcefully and coherently his
contentions.” LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

3

In this case, there appear to be no circumstances which warrant the
appointment of counsel at this time. This Court's liberal construction of pro se
pleadings, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972), coupled with
Petitioner's apparent ability to litigate this action pro se, militate against the
appointment of counsel. Moreover, the legal issues are relatively uncomplicated,
and the Court can not say, at least at this point, that Petitioner will suffer prejudice
if he is forced to prosecute this case on his own. It is also noted that this matter is
presently ripe for consideration.
Based upon those considerations, Deeks’ motion for appointment of counsel
will be denied. In the event, however, that future proceedings demonstrate the
need for counsel, the matter may be reconsidered either sua sponte or upon a
motion properly filed by the Petitioner.
NOW, IT IS HEREBY ORDERED that:
Petitioner’s motion (Doc. 7) seeking appointment of counsel is
DENIED.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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