United States District Court, D. New Jersey
MEMORANDUM AND ORDER
Madeline Cox Arleo, District Judge
matter has been opened to the Court by Petitioner's
filing of an "Application for Assignment of Counsel
Pursuant to 18 U.S.C. Sec. 3006A(a)(2)(B). It appearing that:
Court previously denied without prejudice
Respondents' motion to dismiss the Petition as untimely
and reserved judgment on the issue of equitable tolling. (ECF
Nos. 5-7.) The Court directed Respondents to file a full and
complete answer to the Petition within 45 days and provided
Petitioner with 45 days within which to submit her reply.
December 28, 2018, week after the Court denied without
prejudice the motion to dismiss, Petitioner submitted the
instant application for counsel. (ECF No. 8.) Respondents
sought and received an extension of time within which to file
the answer, and filed the answer on March 13, 2019. (ECF Nos.
13-14.) Petitioner has not submitted her reply.
is no Sixth Amendment right to appointment of counsel in
habeas proceedings. See Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) ("Our cases establish that the
right to appointed counsel extends to the first appeal of
right, and no further."); Par ham v. Johnson,
126 F.3d 454, 456-57 (3d Cir. 1997) (noting no statutory or
constitutional right of counsel conferred upon indigent civil
litigants); Reese v. Fulcomer, 946 F.2d 247, 263 (3d
Cir. 1991) ("There is no 'automatic'
constitutional right to counsel in federal habeas corpus
proceedings."), superseded on other grounds by
statute, 28 U.S.C. § 2254(d). Nevertheless, under
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); see also Thompson v.
D'llio, 2018 WL 6182431, at *2 (D.N.J., 2018).
determining whether the interests of justice require
appointment of counsel, the Court considers whether the
petitioner has presented a meritorious claim. See Biggins
v. Snyder, Civ. No. 99-188, 2001 WL 125337, at *3 (D.
Del. Feb. 8, 2001) (citing Reese v. Fulcomer, 946
F.2d 247, 263-64) (3d Cir. 1991) (other citations omitted)).
Next, the Court must determine whether the appointment of
counsel will benefit both the petitioner and the Court by
examining the legal complexity of the case and the
petitioner's ability to present his claims and
investigate facts. See Biggins, 2001 WL 125337, at
*3 (citing Reese, 946 F.2d at 264; Parham,
126 F.3d at 457-58; Tabron v. Grace, 6 F.3d 147,
155-56 (3d Cir. 1993)) (other citations omitted). "Where
these issues are straightforward and capable of resolution on
the record, or when the petitioner has a good understanding
of the issues and the ability to present forcefully and
coherently h[er] contentions, the court would not abuse its
discretion in declining to appoint counsel."
Biggins, 2001 WL 125337, at *3 (citations and
internal quotation marks omitted).
Court notes that Petitioner paid the $5.00 filing fee and has
not submitted an affidavit of poverty pursuant to L. Civ. R.
81.2(b). As such, she has not established that she is
financially eligible for purposes of appointment of counsel
under 18 U.S.C. § 3006A(a)(2)(B).
Petitioner could establish her financial eligibility, the
Court is not convinced that appointment of counsel is
warranted at this time. In her motion for counsel, Petitioner
appears to argue that the dispute over whether the Petition
is untimely is complex and warrants appointment of counsel.
(See ECF No. 8, Motion at 1-2.) The Court disagrees.
In the Court's prior Order denying without prejudice the
motion to dismiss the Petition as untimely, the Court stated
that "Petitioner in her Reply should provide any
additional facts regarding her efforts to discover whether
her petition for certification [affirming the Appellate
Division's denial of PCR] had been ruled upon by the New
Jersey Supreme Court." (See ECF No. 7.) These are facts
within Petitioner's knowledge, and it is not clear how an
attorney would assist Petitioner in explaining her efforts,
if any, to find out whether her petition for certification
had been denied by the New Jersey Supreme Court. Thus, there
appears to be no need for an attorney to investigate or
conduct discovery as to whether Petitioner can establish
equitable tolling. Furthermore, if the Court determines that
a hearing is required on the issue of timeliness, it would
sua sponte appoint counsel for Petitioner for the
also states without elaboration that her claims have merit
and that she lacks legal knowledge and training.
[See ECF No. 8, Motion at 1-2.) Petitioner's
motion does not address the merits or complexity of her
specific claims for relief, and there is nothing to suggest
that her claims cannot be decided on the record provided by
Court will therefore deny without prejudice the
application for counsel. Any new application for appointment
of counsel must provide facts showing that one or more of
Petitioner's claims for relief have merit and provide
facts regarding the complexity of her claims and her current
ability to present those claims to the Court. The Court will
also direct the Clerk of the Court send Petitioner the in
forma pauperis application ("IFP application")
for habeas cases, i.e., DNJ-Pro Se-007-B-(Rev. 09/09). If
Petitioner submits a new application for appointment of
counsel, she shall submit the completed IFP application with
her application for counsel.
because Petitioner has not submitted her reply, the Court
will provide Petitioner with 45 days within which to submit
her reply to Respondents' answer. If Petitioner fails to
submit a reply or otherwise respond to this Memorandum and
Order, the Court may decide the matter on the record
IS THEREFORE, on this 19th day of July
2019, ORDERED that the application for
appointment of counsel is denied WITHOUT
PREJUDICE for the reasons explained in this
Memorandum and Order; and it is further
that the Clerk of the Court shall send Petitioner the in
forma pauperis application for habeas cases, i.e.,
DNJ-Pro Se-007-B-(Rev. 09/09); and it is further
that if Petitioner submits a new application for appointment
of counsel, she shall submit a completed IFP application; she
shall also provide facts showing that one or more of her
claims for relief have merit and provide facts regarding the
complexity of her ...