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Duarte v. Hurley

October 28, 1998

NELSON O. DUARTE,
PETITIONER,
V.
JOHN M. HURLEY & ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, WENDY ALICE WAY,
DEFENDANTS.



The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge

OPINION

JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE

Before the Court is petitioner's application for appointment of counsel. Defendants have not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, petitioner's application is denied.

BACKGROUND

On June 19, 1980, petitioner was indicted for various offenses arising out of the March 25, 1980, riot at the Essex County Jail in Newark, New Jersey. The New Jersey Superior Court, Law Division, conducted a jury trial that lasted ten days, and the jury convicted petitioner of (1) third degree attempted escape, (2) committing acts of riot in the fourth degree, and (3) third degree possession of an implement of escape. The trial court sentenced petitioner to ten years in prison for attempted escape and possession of an implement of escape. Petitioner appealed his conviction to the appellate division of the superior court, which affirmed his convictions and sentence in an opinion dated November 13, 1985. Subsequently, petitioner sought review by the Supreme Court of New Jersey, but was denied certification on October 15, 1986.

"Duarte then slumbered for ten years before filing [his first] application for a writ of habeas corpus on May 7, 1996." Duarte v. Hershberger, 947 F. Supp. 146, 147 (D.N.J. 1996). Judge Wolin dismissed without prejudice Duarte's first petition because at that time he had failed to exhaust state remedies for his claim of ineffective assistance of counsel. Further, Judge Wolin declined discretionary review of petitioner's application under 28 U.S.C. § 2254(c). See Duarte, 947 F. Supp. at 150. Duarte then filed his current petition for a writ of habeas corpus on January 22, 1998.

DISCUSSION

A plaintiff in a civil suit has neither a constitutional nor a statutory right to counsel. A court, however, has the discretionary authority to appoint counsel to represent an indigent plaintiff under 28 U.S.C. § 1915 (d). See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). When deciding whether to appoint counsel under Section 1915, the Court must be persuaded that the plaintiff's claim has some merit in law and fact. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If it finds the plaintiff's claim has merit, the Court must then weigh a variety of factors to decide whether it is appropriate to appoint counsel.

According to Tabron, the district court has broad discretion in deciding whether to grant a motion for appointment of counsel, pursuant to 28 U.S.C. § 1915 (d). See Tabron, 6 F.3d at 153. As a threshold matter, the Tabron guidelines state that the case must have arguable legal and factual merit. See id. at 155. If the court finds that the indigent plaintiff's claim has arguable merit in law and fact, the court then examines a number of additional factors such as the plaintiff's ability to present the case, the complexity or degree of difficulty of the legal issues involved, the degree to which factual investigation will be required and the ability of the plaintiff to pursue such investigation, and the extent to which the case will turn on credibility determinations and experts. See id. at 156. Finally, the court should consider any factors weighing against appointing counsel, the limited supply of competent lawyers willing to undertake such representation without compensation, and the value of lawyers' time. See id. at 157.

I. LEGAL AND FACTUAL MERIT

In 1996, Congress overhauled the statutes regulating post conviction relief in the federal courts by passing the Antiterrorism and Effective Death Penalty Act (AEDPA), which was subsequently signed by the President. In so doing, Congress sought to curb abuse of the writ and to stem frivolous prisoner litigation. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 616 (3d Cir. 1998); id. at 618. The revised statute became effective on April 24, 1996, and contains an amended section 2244(d), which relates to a new statute of limitations:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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