This Motion is before the court in connection with petitioner's Motion (Document 74) pursuant to 28 U.S.C.A. § 2255 to vacate judgment of conviction. It appears that petitioner is indigent (see affidavit attached to Document No. 74) and he has been granted leave to proceed in forma pauperis (see page 8(a) of Document 74).
However, examination of the controlling authorities shows that petitioner is not entitled, as a matter of right, to court-appointed counsel. United States v. Keller, 284 F.2d 800 (3rd Cir., 1960), citing Clatterbuck v. United States, 105 U.S.App.D.C. 295, 266 F.2d 893 (1959), and Vinson v. United States, 235 F.2d 120 (6th Cir., 1956); Green v. United States, 158 F.Supp. 804, 807 (D.Mass.1958), aff'd. 256 F.2d 483 (1st Cir., 1958), cert. den. 358 U.S. 854, 79 S. Ct. 83, 3 L. Ed. 2d 87 (1958).
Petitioner's Motion and memorandum raise only one point, and that is a question of law: namely, was the indictment fatally defective because it did not name the purchaser of the narcotics it charged Jackson with selling. It is noted that petitioner had counsel of his own choosing at all proceedings in this court, including trial and sentencing. This court also appointed counsel to aid Jackson in his appeal to the United States Court of Appeals for the Third Circuit. The cases cited above make it clear that Jackson has no right to court-appointed counsel in connection with this Motion under 28 U.S.C.A. § 2255.
The language of 28 U.S.C.A. § 1915 leaves appointment of counsel to the discretion of the court in each particular case. Since no issues of fact are raised by this Motion, there will be no need to take further testimony and, therefore, no need for the aid of experienced trial counsel. Cf. Jones v. United States, 290 F.2d 216 (10th Cir., 1961); Cain v. United States, 271 F.2d 337 (8th Cir., 1959). Furthermore, it is noted that, if counsel were appointed, it is the court's fear that he might be subjected to the same criticism which was borne by the exceptionally able and experienced counsel appointed, at petitioner's request, by this court to represent him in the United States Court of Appeals.
Such counsel gave generously of his time and skill without compensation in an effort to help petitioner, who, in his letter of September 1961 (copies of which were sent to the Chief Judge of the United States Court of Appeals for the Third Circuit and to this court), accused such court-appointed counsel of 'toying * * * with an urgent matter' (page I), stated 'If you think I'm going to let you practice on my appeal as you are doing, you are mistaken.' and also said such counsel was 'trying to shun and misconstrue the other fundamental constitutional questions I would like to have raised on my appeal' (pp. III-IV). This letter from petitioner, together with a letter from his court-appointed counsel, are attached to this Memorandum Opinion. Petitioner's letter of October 22, 1961, to the trial judge contained this language: 'I have asked the appellate court to appoint me another attorney because I am not at all satisfied with the actions of (court-appointed counsel) or the brief he has filed in my behalf.' Petitioner had also criticized counsel secured by himself or his family to represent him in the trial court (for example, pp. 14-15, 22, 27-28, 28-31 and 37 of Document 28a)
prior to the time he requested the court to appoint counsel in order that such counsel might take an appeal for him.
And now, August 21, 1963, after consideration of the above Motion, it is ordered that petitioner's Motion for ...