The opinion
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK | DOC #: _.. □□
NOEL BROWN,
Petitioner, 22-CV-06371 (PAE) (VF)
-against- ORDER
STATE OF NEW YORK,
Respondent.
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VALERIE FIGUEREDO, United States Magistrate Judge:
By applications dated April 4, 2023, and January 17, 2024 (see ECF Nos. 30, 45),
Petitioner Noel Brown moves the Court to grant a request for pro bono counsel in connection
with his pending habeas petition (the “Application”). For the reasons set forth below, the motion
is denied without prejudice.
“As an initial matter, there is no constitutional right to representation by counsel in civil
or habeas corpus proceedings.” Williams v. United States, No. 20-CV-1554 (RJS), 2020 WL
1674108, at *1 (S.D.N.Y. Apr. 6, 2020) (citing Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993)
and In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984)). In its discretion, however, the
Court may request counsel to represent a petitioner seeking relief under § 2255 when that person
is “financially unable to obtain adequate representation” and “the interests of justice so require.”
18 U.S.C. §§ 3006A(a) and (a)(2)(B). In determining whether to appoint counsel for habeas
petitioners, courts consider the standards set forth by the Second Circuit for appointment of
counsel to indigent civil litigants pursuant to 28 U.S.C. § 1915.
The Court’s first inquiry is whether a party can afford to obtain counsel. See Terminate
Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the Court finds that a party
cannot afford counsel, it must then examine the merits of the case and decide whether the
litigant’s claim “seems likely to be of substance.” McCray v. Royce, No. 20-CV-4127 (KPF)
(KHP), 2020 WL 8669830, at *1 (S.D.N.Y. July 29, 2020) (quoting Hodge v. Police Officers,
802 F.2d 58, 61 (2d Cir. 1986)); see Cary v. Ricks, No. 00-CV-8926 (RWS), 2001 WL 314654,
at *4 (S.D.N.Y. Mar. 30, 2001) (applying Hodge factors to habeas petitioner’s request for
counsel). “In order to make such a determination, the Court must decide whether, from the face
of the pleadings, the claims asserted by the plaintiff may have merit, or the plaintiff appears to
have some chance of success.” West v. Brickman, No. 07-CV-7260 (PKC) (DF), 2008 WL
3303773, at *1 (S.D.N.Y. Aug. 6, 2008) (citations and internal quotation marks omitted).
Although trial courts are to undertake “the preliminary assessment of likely merit . . . somewhat
more generously since the unrepresented litigant might have difficulty articulating the
circumstances that will indicate the merit that might be developed by competent counsel,” the
Second Circuit has nevertheless “cautioned that this requirement ‘must be taken seriously.’”
Williams, 2020 WL 1674108, at * 1 (quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d
Cir. 1989)). When assessing the merits, the Court must be mindful that “[e]ven where the claim
is not frivolous, counsel is often unwarranted where the indigent’s chances of success are
extremely slim.” Id.
Following the threshold merits inquiry, the Court should consider several additional
factors set forth by the Second Circuit in Hodge, including:
the indigent’s ability to investigate the crucial facts, whether conflicting evidence
implicating the need for cross-examination will be the major proof presented to the fact
finder, the indigent’s ability to present the case, the complexity of the legal issues and
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any special reason in that case why appointment of counsel would be more likely to lead
to a just determination.
802 F.2d at 61-62; see Cooper, 877 F.2d at 172. The Court should also be mindful of the Second
Circuit’s instruction that “[v]olunteer lawyer time is a precious commodity” and that “every
assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer
available for a deserving cause.” Cooper, 877 F.2d at 172.
Petitioner filed an initial Request for IFP status on July 29, 2020, ECF No. 3, which was
granted, ECF No. 4. In his initial IFP application, Petitioner represented that he is incarcerated, is
not employed, has no assets or property, and owes court fines and fees. ECF No. 3. In his instant
application, Petitioner represents that his IFP application is a true and correct representation of
his current financial status. ECF No. 45. As such, Petitioner has sufficiently demonstrated that he
is indigent and, thus, meets the income eligibility requirements to be appointed pro bono counsel.
See McCray, 2020 WL 8669830, at 2 (finding that petitioner in habeas case satisfied the income
eligibility requirements for appointment of pro bono counsel because although he received $792
from the “state” every two weeks and occasionally received money from his family, he was
incarcerated, not employed, had no assts or property, and his IFP application was previously
granted).
The Court next turns to the Application and Petitioner’s reasons for seeking the
appointment of counsel in this case. In 2019, Petitioner was convicted of two counts of criminal
possession of a weapon in the second degree. ECF No. 1. at 1. In his Application filed on July
25, 2022, Petitioner raises ineffective assistance of counsel, “speedy trial,” “constitutional
errors,” and “due process” claims. Id. at 5-11. Petitioner filed a motion to vacate his sentence on
April 4, 2023, ECF No. 31, and then filed an amended motion to vacate his sentence on October
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6, 2023, ECF No. 6. Respondent has until February 5, 2024, to file a response. ECF No. 42.
Given that this case is still in the early stages of litigation, and Respondent has not yet opposed
the motion to vacate, the Court cannot ascertain whether Petitioner’s claims are “likely to be of
substance.” Hodge, 802 F.2d 61-62; see also Carmona, 243 F.3d at 632. As such, Petitioner’s
request for the appointment of counsel is denied as premature.
Even if the Court were to find that Petitioner’s claims have merit, the other Hodge factors
weigh against granting Petitioner’s application at this stage, because Petitioner has not
articulated the reasons why appointment of counsel is warranted in this case. ECF Nos. 30, 45.
Apart from providing his financial information, Petitioner’s application contains only the
following explanation:
Petitioner needs an attorney in this case due to the Court has issued a error decision on
the merits of the case. Whereby, the interests of justice requires an attorney at such a
critical stage of the proceedings, whereat the petitioner is confronted, just as at trial, by
the procedural system, or by his expert adversary, or by all the above.
I have taken steps to find to find an attorney. Including letters to the N.Y.S. Bar
association, and phone calls to Law Firms, within the state. However, because of limited
access to other communications methods, cause by my current incarceration I otherwise
have great difficulty contacting attorney’s, law firms, or legal clinics, who maybe able to
assist.
ECF No. 45.
Because Petitioner has not explained why he seeks the appointment of counsel in this
case, he has failed to articulate any bases that would justify the appointment of counsel at this
time. See Hodge, 802 F.2d at 61–62; see also Martinson v. U.S. Parole Comm’n, No.02-CV-
4913 (DLC) (DF), 2004 WL 203005, at *4–5 (S.D.N.Y. Feb. 2, 2004) (denying request for
appointment of pro bono counsel where petitioner in habeas proceeding failed to articulate
reasons showing that the appointment of counsel was required to meet the interests of justice).
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Accordingly, Petitioner’s Application is DENIED without prejudice to renewal at a later
point, if additional grounds for an application are presented to the Court. Any renewed.
application should utilize the same standard-form application used here, to which Petitioner
should append an affidavit establishing facts supporting the Hodge factors set forth above.
The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 30 and
4S.
SO ORDERED.
DATED: January 23, 2024
New York, New York
United States Magistrate Judge