Opinion
08 Civ. 6235 (LAK).
September 4, 2008
ORDER
Now before the Court in this pro se proceeding by a state prisoner for a writ of habeas corpus are petitioner's motions (1) for leave to proceed in forma pauperis and to (2) "consider whether Petitioner's raised constitutional claims was a denial of due process rights and if denial of relief applications was contrary to or involved an unreasonable application of clearly established federal law as determinated by the Supreme Court. Whether petitioners 4th, 5th, 6th 14th amends [ sic] were violated. Grant habeas petition and reverse judgment of conviction pursuant to C.P.L. § 160.50." Also before the Court is a letter requesting the appointment of counsel.
When the petition was received in July 2008, the Clerk's office, pursuant to Standing Order M10-468 Document #3, accepted and docketed the petition without payment of the fee. Section 1915(a) of the Judicial Code, 28 U.S.C. § 1915(a), which governs leave to proceed in forma pauperis, however, entitles one to commence, prosecute or defend any suit without prepayment of fees, only upon the filing of an affidavit sufficiently establishing that "the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a).
It is important that petitioner understand that leave to proceed in forma pauperis confers the right to proceed without prepaying court fees. It is entirely possible for one to have sufficient means to pay the court fees, in which case in forma pauperis relief will be denied, but have insufficient means to afford a lawyer, in which case counsel, depending upon the circumstances, may be appointed.
I assume that the Standing Order is an appropriate means of relieving the administrative burden and delay that often would be involved where untutored pro se litigants file habeas petitions without in forma pauperis applications. Here, however, petitioner has filed such an application. It states that he has about $7,000 in an attorney escrow account. The Court therefore cannot properly find that he is unable to prepay the court fees necessary to proceed with this petition. Accordingly, this action is stayed. If petitioner pays the filing fee of $350 to the Clerk of the Court or, alternatively, establishes by affidavit that he is unable to pay that fee, the stay will be vacated. If he does neither by November 4, 2008, the proceeding will be dismissed. The pending motion for in forma pauperis relief is denied.
Petitioner's second motion, which is supported by a copy of his habeas petition, is duplicative of the habeas application and entirely unnecessary. Accordingly, it too is denied, albeit without prejudice to the petition itself.
Finally, petitioner's motion for the appointment of counsel also is denied.
As an initial matter, petitioner appears to have the financial resources to hire a lawyer and thus not to qualify for appointment of counsel, either on a pro bono basis or pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. Moreover, his papers do not remotely establish that he would be unable to find and retain private counsel. Federal Defenders two other lawyers who declined the case. But Federal Defenders represents only those whom it is appointed to represent by this Court and thus could not have taken petitioner as a client. And the letters from the other two lawyers do not even begin to explain the circumstances of their rejection of the case. For example, they do not indicate — and petitioner does not say — whether he offered to pay a fee. The long and the short of it is that petitioner evidently has money. There are vast numbers of lawyers who presumably would take on a case such as this on a paying basis. There is not much evidence that petitioner has made much of an effort to find one. He might wish to consult the lawyer referral services of the New York State Bar Association and the Association of the Bar of the City of New York.
In any case, the appointment of counsel for petitioner, at least at this stage, at best would be premature. As the Second Circuit has written:
"In deciding whether to appoint counsel, however, the district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider 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 any special reason in that case why appointment of counsel would be more likely to lead to a just determination." Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986) (internal quotation marks omitted)).
In this case, a preliminary review of the petition does not indicate that the case is likely to be of substance although the Court has directed a response. After the receipt of the response, petitioner is at liberty to renew his application, assuming that he can demonstrate also that he is unable to afford private counsel.
SO ORDERED.