United States District Court, D. New Jersey
November 7, 2005.
JOEL EDWARD DURMER, Petitioner,
GRACE ROGERS, et al., Respondents.
The opinion of the court was delivered by: JOEL PISANO, District Judge
THIS MATTER comes before the Court upon application by
petitioner, Joel Edward Durmer, requesting appointment of pro
bono counsel. Petitioner, who is proceeding pro se, has brought
a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. For the reasons set forth below, Petitioner's application
is denied without prejudice.
There is no "automatic" constitutional right to counsel in a
federal habeas corpus proceeding. Coleman v. Thompson,
501 U.S. 722, 752 (1991); Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir.
1991), cert. denied, 503 U.S. 988 (1992); see also Smith
v. Angelone, 111 F.3d 1126, 1133 (4th Cir. 1997), cert.
denied, 521 U.S. 1131 (1997); Williams v. Turpin,
87 F.3d 1204, 1210 (11th Cir. 1996); Morrison v. Duckworth,
898 F.2d 1298, 1300-01 (7th Cir. 1990); Hooks v. Wainwright,
775 F.2d 1433, 1438 (11th Cir. 1985), cert. denied, 479 U.S. 913
(1986). "It has not been held that there is any general obligation of the courts, state or
federal, to appoint counsel for prisoners who indicate, without
more, that they wish to seek post-conviction relief." Johnson v.
Avery, 393 U.S. 483, 488 (1969); Wainwright v. Torna,
455 U.S. 586, 587 (1982); see also Mitchell v. Wyrick, 727 F.2d 773,
774 (8th Cir. 1984) (appellant not entitled to counsel at state
post-conviction proceedings because they are civil in nature and
not covered by the Sixth Amendment which applies only during the
pendency of a criminal case), cert. denied, 469 U.S. 823
Any person seeking relief under the federal habeas statutes may
be granted counsel, however, "whenever the United States
magistrate or the court determines that the interests of justice
so require and such person is financially unable to obtain
representation." 18 U.S.C. § 3006A(g) (1988) ("Discretionary
appointment"). In addition, the court may use its discretion to
appoint counsel to any indigent civil litigant proceeding in
forma pauperis. See 28 U.S.C. § 1915(e)(1).*fn1 The
factors examined by the court in an application presented under
either statute remain largely the same. Compare Reese,
946 F.2d at 263 (relying on § 3006A(g)); Hoggard v. Purkett,
29 F.3d 469, 471 (8th Cir. 1994) (same) with Parham v. Johnson,
126 F.3d 454, 457 (3d Cir. 1997) (articulating the standard under
§ 1915) (citing Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993)); Dellenbach
v. Hanks, 76 F.3d 820, 823 (7th Cir. 1996) (same).
Initially, the district court must first decide if the
petitioner has presented a nonfrivolous claim. See Reese,
946 F.2d at 263-64; accord Abdullah v. Norris, 18 F.3d 571, 573
(8th Cir. 1994); see also Parham, 126 F.3d at 456-57. If
the court determines that a claim is not frivolous, the court
next must determine whether the appointment of counsel will
benefit both the petitioner and the court. See Reese,
946 F.2d at 264; cf. Parham, 126 F.3d at 457. Factors influencing
a court's decision include the complexity of the factual and
legal issues in the case, as well as the pro se petitioner's
ability to investigate facts and present claims. See Battle v.
Armontrout, 902 F.2d 701, 702 (8th Cir. 1990); accord McCall
v. Benson, 114 F.3d 754, 756 (8th Cir. 1997); see also
Parham, 126 F.3d at 457-58. Courts have held, for example, that
there was no abuse of a district court's 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."
La Mere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).
Here, there is no indication that petitioner does not fully
comprehend the issues he presents in his § 2254 petition. The
petition demonstrates petitioner's ability to present his claims
"forcefully and coherently." Further, the Court finds that the
issues raised by petitioner are neither factually nor legally
complex. The claims are straightforward, challenging his state
court conviction on claims of judicial bias, prosecutorial
misconduct, and ineffective assistance of trial counsel. Thus, it
appears that the petitioner's indigence is the only factor that
may favor appointment of counsel. On this factor alone, the Court
finds no compelling reason to justify appointment of counsel.
Therefore, because petitioner has not presented sufficient facts
that would compel the appointment of counsel in the interests of
justice, the Court chooses not to exercise its discretionary
power to assign pro bono counsel to petitioner at this time. CONCLUSION
For the foregoing reasons, it is the finding of this Court that
petitioner's application for appointment of pro bono counsel
should be denied, without prejudice, to be renewed if this Court
is presented with facts sufficient to mandate the appointment of
counsel. An appropriate Order follows.
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