United States District Court, D. New Jersey
MEMORANDUM AND ORDER
L. WOLFSON, UNITED STATES DISTRICT JUDGE
Dennis Kerrigan (“Kerrigan” or
“Petitioner”), acting pro se, commenced
this proceeding by filing a petition for writ of habeas
corpus under U.S.C. § 2254, which complained of the
State's conduct during his criminal trial and alleged
that he received ineffective assistance of counsel.
(See Pet., ECF No. 1.) On December 7, 2018, the
Court dismissed Kerrigan's Petition upon screening under
Rule 4 of the Rules Governing § 2254 Cases because
Kerrigan was not in custody when he filed his
Petition. (ECF Nos. 5 & 6.)
subsequently filed a letter with the Court requesting the
appointment of counsel to represent him. (ECF No. 7.)
Kerrigan acknowledges that he lacks grounds to assert a
habeas claim, but now states that he would like to file a
Complaint asserting violations of his civil rights. (See
id.) He asks the Court to appoint him counsel to aid him
in doing so.
request implicates two separate provisions regarding
appointment of counsel. In a habeas proceeding, like this
one, in which Kerrigan filed his request, appointment of
counsel is provided for under 18 U.S.C. § 3006A.
Meanwhile, in a civil action, such as a civil rights action,
which Kerrigan asserts he would like to commence, appointment
of pro bono counsel is governed by 28 U.S.C. §
1915(e)(1) and related caselaw. Neither of these provisions
support appointing Kerrigan counsel at this time, however, as
he presently has no pending, potentially meritorious claim.
18 U.S.C. § 3006A, courts may appoint counsel to habeas
petitioners if they are “financially eligible”
and if “the interests of justice so require.” 18
U.S.C. § 3006A(a)(2)(B). In determining whether the
interests of justice support the appointment of counsel,
“the district court must first decide if the petitioner
has presented a nonfrivolous claim and if the appointment of
counsel will benefit the petitioner and the court.”
Reese, 946 F.2d at 263. Kerrigan is not eligible for
appointment of counsel under § 3006A because he has not
presented a nonfrivolous claim. Indeed, the Court dismissed
Kerrigan's § 2254 habeas Petition because he did not
satisfy the central prerequisite for filing such a
Petition-being in custody under the conviction he was
challenging. (See ECF No. 5.)
28 U.S.C. § 1915(e)(1), the Court may request pro
bono counsel to represent a party in a civil action, but
must first assesses the factors identified by the United
States Court of Appeals for the Third Circuit in Tabron
v. Grace, 6 F.3d 147. The first factor, which is also a
threshold determination that must be established before
considering any other factors, is the potential merit of the
party's claim. See Tabron, 6 F.3d at 155, 158;
Prudential Ins. Co. of Am. v. Dobson, No. 08-3951,
2009 WL 115966, at *1-2 (D.N.J. Jan. 16, 2009); Protameen
Chems., Inc. v. Chinchilla, No. 05-3383, 2007 WL 174163,
at *1 (D.N.J. Jan. 22, 2007). Kerrigan cannot meet the
threshold requirement of a potentially meritorious claim, as
he currently has no active civil claim before the Court.
While Kerrigan has explained that he would like to file a
civil rights Complaint, he has yet to do so.
Kerrigan intends to assert a claim for civil rights
violations, he must do so in a new Complaint filed with the
Court on a new docket. If necessary, Kerrigan may move for
pro bono counsel in that new matter. In the
interests of justice, the Court will direct the Clerk's
Office to send Kerrigan a form Complaint for Violation of
Civil Rights (Non-Prisoner), Form Pro Se 15 (Rev. 12/16).
IT IS, on this 28th day of March 2019, ORDERED that this
proceeding is REOPENED for the sole purpose of considering
Plaintiff's application for appointment of counsel; and
it is further
that Plaintiff's application for the appointment of
counsel (ECF No. 7) is DENIED; and it is further
that the Clerk shall again mark this case as CLOSED; and it
that the Clerk shall serve upon Plaintiff by regular U.S.
mail (1) this Memorandum and Order and (2) a copy of Form Pro
Se 15 (Rev. 12/16) Complaint for Violation of Civil Rights
 As explained in that Memorandum
Opinion, a § 2254 habeas petitioner must, at the time of
filing, be in custody under the conviction he is attacking.
28 U.S.C. § 2254; Obado v. New Jersey, ...