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United States v. Connolly


August 13, 2010


The opinion of the court was delivered by: Chesler, District Judge


This matter comes before the Court on the July 12, 2010 motion filed by pro se Defendant David Connolly ("Connolly") for (1) appointment of counsel pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A and (2) for discovery pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings for the United States District Courts [docket entry 55]. Following a jury trial, a judgment of conviction was entered by this Court against Connolly on July 22, 2008, based a on jury verdict of guilty on one count of possession of a firearm by a convicted felon. Connolly appealed the conviction and advises the Court in the instant motion papers that his petition for certiorari has been denied by the Supreme Court. The requests for relief he now makes to this Court relate to his stated intent to file a petition collaterally attacking the conviction under 28 U.S.C. § 2255.

Connolly first requests that CJA counsel be appointed to represent him in pursuing habeas corpus relief under § 2255.*fn1 The Court begins by noting that there is no constitutional right to counsel in a federal habeas corpus proceeding. See 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 denied, 503 U.S. 988 (1992), superseded on other grounds by statute, 28 U.S.C. § 2254(d). Instead, "the decision to appoint counsel in proceedings brought under § 2255 is... a matter of discretion and, as result, there is no "clear and indisputable" right to that relief. In re Demelio, 350 F.App'x 718, 720 (3d Cir. 2009) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). Under the governing provision of the CJA, the Court may appoint counsel for "any financially eligible person" who is seeking relief under 28 U.S.C. § 2255 if "the court determines that the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). The Third Circuit has provided guidance on how the Court should make this discretionary determination:

[T]he district court must first decide if the petitioner has presented a non-frivolous claim and if the appointment of counsel will benefit the petitioner and the court. 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. 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, or the issues were straightforward and capable of resolution on the record or the petitioner had a good understanding of the issues and the ability to present forcefully and coherently his contentions.

Reese, 946 F.2d at 263-64 (citations and quotations omitted).

Connolly has not demonstrated to the Court that the interests of justice warrant appointing counsel in his anticipated but not yet filed habeas corpus petition. He has given no indication as to the grounds on which he will challenge his conviction. Without the petition itself or any projection by Connolly of the arguments he intends to make, the Court has no basis on which to conclude that Connolly's § 2255 case will present particularly complex or novel legal issues and no meaningful way to evaluate the potential merits of the case. Nor can it conclude on the perfunctory application made by Connolly that his case will require extensive or particularly difficult fact-finding. The Court further notes that Connolly's instant motion is clear and articulate, giving every indication that he is capable of representing himself in pursuing relief under § 2255. In short, Connolly's mere demand for legal representation, without giving compelling reasons why the interests of justice warrant appointment of counsel, is insufficient to grant his request.

The second request Connolly makes in the instant motion, for discovery under Habeas Corpus Rule 6, must be denied. The rule authorizes the Court to permit a party to conduct discovery upon "good cause" shown. Rules Governing § 2255 Proceedings, Rule 6(a). It requires that the party requesting discovery "provide reasons for the request" and be specific as to what is sought: "the request must also include any proposed interrogatories and requests for admissions, and must specify any requested documents." Rules Governing § 2255 Proceedings, Rule 6(b). Apart from the fact that there is no § 2255 case in existence to which Connolly's request pertains, Connolly has failed even to generally describe much less specify the items of discovery he wishes to obtain.

Having determined that Connolly's requests for appointed counsel and discovery must be denied, the Court will address his alternative requests that the Court (1) direct both the Office of the Federal Defender and the Government to provide him with a complete copy of his file and (2) order the Bureau of Prisons to place him in the Metropolitan Detention Center. As for the request for the file, Connolly is of course entitled to documents in the possession of his prior counsel relating to his criminal defense, but he has made no demonstration that the fine and competent counsel who represented him have withheld documents or otherwise failed to provide him with any portion of his file. The request for the file from the Government is baseless, as it merely re-states his Rule 6 discovery application. As for his place of incarceration, the law vests the Bureau of Prisons with the authority to designate a convicted criminal's place of incarceration. See 18 U.S.C. § 3621(b). This Court has no authority over the Bureau of Prisons with respect to this designation. Thus, both of Connolly's alternative requests for relief will be denied.

An appropriate form of Order will be filed denying the various request for relief made by Connolly in his July 12, 2010 filing with the Court.

STANLEY R. CHESLER United States District Judge

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