JACOBS v. GIROUX et al
Filing
38
MEMORANDUM OPINION & ORDER denying 37 Motion to Appoint Counsel filed by ANDRE JACOBS. Signed by Magistrate Judge Robert C. Mitchell on 11/28/2016. (spc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE JACOBS,
Petitioner,
v.
SUPERINTENDENT NANCY GIROUX,
et al.,
Respondents.
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Civil Action No. 15-1656
MEMORANDUM AND ORDER
Presently before this Court is petitioner’s motion for the appointment of counsel (ECF
No. 37). This matter is before the Court for a determination of whether or not, under the facts
and circumstances of this case, the Court should exercise its discretion pursuant to 28 U.S.C.
' 1915(e)(1) and request an attorney to represent petitioner in the prosecution of this action.
The petitioner, Andre Jacobs, an inmate at the State Correctional Institution at Albion
(“SCI Albion”), has presented a petition for writ of habeas corpus pursuant to 28 U.S.C. ' 2254
against respondents, the Superintendent of SCI Albion, the District Attorney of Allegheny
County and the Attorney General of the Commonwealth of Pennsylvania. In his amended
petition, petitioner alleges that: 1) his trial counsel was ineffective for ignoring a “duress”
defense to the charges and told him to testify that he was not involved in the escape attempt; 2)
trial counsel was ineffective for proceeding with jury selection when the judge was not present
and petitioner did not sign a form waiving the judge’s presence; 3) PCRA counsel was
ineffective for failing to secure exculpatory evidence proving that the duress defense was viable
and that he did not sign a waiver; and 4) he is serving multiple sentences that are beyond the
statutory maximums. He contends that he suffers from mental illness which impairs his ability to
file proper responses to respondents’ motions or effectively present his claims.
In considering a motion for the appointment of counsel, this Court must determine
whether or not to request counsel to represent this indigent litigant under the provisions of 28
U.S.C. ' 1915(e)(1). Section 1915(e)(1) gives the Court broad discretion to determine whether
appointment of counsel is warranted, and that determination must be made on a case-by-case
basis. Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir. 1993).
As a threshold matter the district court should consider whether the petitioner’s claims
have arguable merit in fact or law. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). See
Tabron, supra at 155. If the court determines that the claims have some merit, the court should
then consider the following factors:
1.
the petitioner’s ability to present his or her own case;
2.
the complexity of the legal issues;
3.
the degree to which factual investigation will be necessary and the ability
of the petitioner to pursue such investigation;
4.
the amount a case is likely to turn on credibility determinations;
5.
whether the case will require the testimony of expert witnesses; and
6.
whether the petitioner can attain and afford counsel on his own behalf.
Parham v. Johnson, supra. “The list of factors is not exhaustive, but instead should serve as a
guidepost for the district courts. Correspondingly, courts should exercise care in appointing
counsel because volunteer lawyer time is a precious commodity and should not be wasted on
frivolous cases.” Id. at 458.
2
After careful consideration of petitioner’s allegations, it would appear that the
appointment of counsel is not warranted and, therefore, we will not exercise our discretion.
Initially, it does not appear with any degree of certainty that petitioner is setting forth a
factual basis which demonstrates that he will ultimately prevail on the merits. Nevertheless, in
considering factors one and two B the litigant’s ability to present his case and the difficulty of the
legal issues involved B it is clear that the issues presented in the petition are neither difficult nor
complex, and nothing in the record indicates that petitioner is incapable of presenting his case.
Similarly, the third consideration B the degree to which factual investigation will be necessary
and petitioner’s ability to conduct such investigation B does not weigh in favor of the
appointment of counsel since the petitioner’s case will be decided based on the documents of
record, namely the petition, the answer and the state court pleadings.
Further, while it may be that the credibility of the witnesses will be at issue in the case if
an evidentiary hearing is held, it does not appear that the case will become a “swearing contest”
nor does it appear that proper adjudication will require the testimony of an expert witness.
We do not intimate that the petitioner would not benefit from appointment of counsel, but
rather it appears that the appointment of counsel will not materially aid justice to such a degree as
to warrant the exercise of our discretion. Thus, until such time as a showing is made that the
interests of justice require our exercise of discretion, we decline to do so. See Lassiter v. Dept.
Social Services, 452 U.S. 18 (1981).
An appropriate Order will be entered.
3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE JACOBS,
Petitioner,
v.
SUPERINTENDENT NANCY GIROUX,
et al.,
Respondents.
)
)
)
)
)
)
)
)
)
Civil Action No. 15-1656
ORDER
AND NOW, this 28th day of November, 2016,
IT IS ORDERED THAT petitioner’s request for the appointment of counsel is
hereby denied, without prejudice.
s/Robert C. Mitchell____________________
ROBERT C. MITCHELL
United States Magistrate Judge
cc:
Andre Jacobs
DQ-5437
S.C.I. Albion
10745 PA-18
Albion, PA 16475
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