United States District Court, D. Massachusetts
H. Hennessy United States Magistrate Judge.
matter comes before the Court on Petitioner Benjamin
Sanchez's motion for the appointment of counsel. Dkt no.
10. On June 27, 2018, this motion was referred to the
undersigned for a ruling. Dkt. no. 17. For the reasons that
follow, Petitioner's motion is DENIED.
generally exists no constitutional right to counsel in a
civil action. See Lassiter v. Dep't of Soc. Servs. of
Durham County, N.C. , 452 U.S. 18, 25 (1981) (explaining
that the right to counsel attaches only where an individual
“may lose his physical liberty if he loses the
litigation”); Lopes v. Dickhaut, No. 16-2119,
2017 WL 7833676, at *1 (1st Cir. Dec. 6, 2017) (stating that
“there is no constitutional right to counsel in a civil
case”); Niemic v. Maloney, 448 F.Supp.2d 270,
278 (D. Mass. 2006) (“There is, however, no
constitutional right to counsel in civil cases.”).
Indeed, “an indigent litigant in federal court has no
constitutional or statutory right to the appointment of
counsel, even if he is challenging a criminal conviction as
by a proceeding . . . for habeas corpus.” Huenefeld
v. Maloney, 2 Fed.Appx. 54, 61 n.5 (1st Cir. 2001)
(quoting Dellenbach v. Hanks, 76 F.3d 820, 823 (7th
Cir. 1996)); see also Johnson v. Avery, 393 U.S.
483, 488 (1969). The Court may, however, appoint counsel for
a financially eligible habeas petitioner if interests of
justice so require. 18 U.S.C. § 3006A(a)(2)(B). The
Court “must examine the total situation” of a
petitioner's case, including all relevant factors, in
assessing whether exceptional circumstances require the
appointment of counsel for a habeas petitioner.
DesRosiers v. Moran, 949 F.2d 15, 24 (1st Cir.
1991); see also Nachtigall v. Class, 48 F.3d 1076,
1082 (8th Cir. 1995). The First Circuit has identified
several factors to determine whether the “rare”
appointment of counsel is warranted in such circumstances.
Fitzpatrick v. Ryan, 13-cv-11756, 2013 WL 4499375,
at *1 (D. Mass. Aug. 16, 2013) (citing United States v.
Mala, 7 F.3d 1058, 1063-64 (1st Cir. 1993). The factors
include: (1) a likelihood of success on the habeas claim; (2)
the factual and legal complexities of the case; and (3) the
petitioner's ability to present his claims. Id.
(citing Mala, 7 F.3d at 1063-64).
the Court takes note of the mental impairment expressed by
Petitioner in his motions for counsel and for voluntary
dismissal. See dkt. nos. 10, 21. This alleged
impairment should be assessed in the context of
Petitioner's case, focusing “on the merits of the
case, the complexity of the legal issues, and the
litigant's ability to represent himself.”
Lucien v. Spencer, 534 F.Supp.2d 207, 210 (D. Mass.
2008) (quoting DesRosiers, 949 F.2d at 24).
“The mere fact of any mental impairment is not
dispositive.” Lucien, 534 F.Supp.2d at 210
(citing Phelps v. United States, 15 F.3d 735, 737
(8th Cir. 1994)). In the Court's view, the posture and
circumstances of this case militate against appointment of
counsel. The petition indicates comprehension, and “a
good understanding of the issues and the ability to present
forcefully and coherently [Petitioner's]
contentions.” See LeMere v. Risley, 827 F.2d
622, 626 (9th Cir. 1987). Petitioner's filings also belie
the assertion that his status as a non-native English speaker
prevents him from communicating his claims without the
assistance of counsel. See, e.g., Thath Sin v.
Mass. Dep't of Corr., 10-40226-FDS, 2012 WL 913254,
at *2 (D. Mass. Mar. 15, 2012) (denying motion to appoint
counsel where filings demonstrated that petitioner, whose
native language was not English, understood the legal issues
it appears that the Court will be able to determine the
merits of petitioner's claims based on the existing
record. See Schultz v. Wainwright, 701 F.2d 900, 901
(8th Cir. 1983) (concluding that an evidentiary hearing is
not required where “the district court can determine
the merits of [a habeas petitioner's claims] based on the
existing record”) (citing Dickson v.
Wainwright, 683 F.2d 348, 351 (11th Cir. 1982)). Here,
Petitioner challenges the final adjudication of his state
conviction on the grounds that: (1) his confession was
involuntary; (2) he was not given an opportunity to
cross-examine an adverse witness; (3) his attorney would not
allow him to testify; and (4) his counsel's assistance
was ineffective. See dkt no. 1, at pp. 5- 12. The
petition suggests that the first two grounds listed above
were raised on direct appeal. See id. at 2. It
appears, therefore, that the issues respecting these claims
can be properly and fully resolved on the bases of the state
court record. See Forte v. Comm'r. of Corr., 134
F.Supp.3d 654, 656 (D. Mass. 2015) (“In determining
whether to appoint counsel in civil proceedings, courts
additionally have considered . . . whether information
necessary to support a petitioner[']s claims [is]
available in prior court filings . . . .”). Further,
while the petition does not suggest that grounds (3) and (4)
were raised on direct appeal, whether or not they were does
not alter the Court's determination of Petitioner's
motion at issue. Although unexhausted claims might impinge
the likelihood of success of a petitioner's habeas
claims, Mala, 7 F.3d at 1063-64, the issues
respecting grounds (3) and (4) of Petitioner's claim do
not appear to involve complex legal issues that would
necessitate the assistance of counsel, nor do they seem to
embrace complex factual issues that would require further
investigation. See Lucien, 534 F.Supp.2d at 210-11.
The Court therefore does not find the existence of
exceptional circumstances which would warrant the appointment
of counsel at this time.
foregoing reasons, Petitioner's motion to appoint counsel