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David Patrick Gribschaw v. Michael Wenerowicz

January 18, 2012

DAVID PATRICK GRIBSCHAW, PETITIONER,
v.
MICHAEL WENEROWICZ, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Cathy Bissoon

ORDER

David Patrick Gribschaw ("Petitioner") executed the instant petition for writ of habeas corpus on August 18, 2010. (Doc. 1-1 at 45). Pursuant to 28 U.S.C. § 2254, Petitioner challenges his 2000 conviction in the Court of Common Pleas of Allegheny County, Pennsylvania, of the charge of first degree murder, 18 Pa. Cons. Stat. Ann. § 2501-02, for which he currently is serving a sentence of life imprisonment.

Before this Court are several motions filed by Petitioner. The first to be addressed in this order is Petitioner's motion for the assignment of a federal public defender. (Doc. 23). There is no constitutional right to counsel in proceedings brought pursuant to 28 U.S.C. § 2254. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1990). The appointment of counsel is not mandatory unless an evidentiary hearing has been granted. Rules 8(c), Rules Governing Section 2254 Cases. The standard for the appointment of counsel in a section 2254 case is whether "the interests of justice . . . require" that representation be provided. 18 U.S.C. § 3006A(a)(2). Some courts within the Third Circuit have applied the analysis for the appointment of counsel in articulated by court of appeals in Tabron v. Grace, 6 F.3d 147, 155-57 (3d Cir. 1993), which explicitly relates to motions for counsel filed pursuant to 28 U.S.C. § 1915. See, e.g., Helfrich v. Coleman, No. 4:10-CV-0751, 2010 WL 3629532, at *2 (M.D. Pa. Sept. 9, 2010). Out of an abundance of caution, this Court will apply that standard here.

The court of appeals in Tabron acknowledged that district courts have no authority to compel counsel to represent an indigent civil litigant. 6 F.3d at 157 n.7. That court also recognized that when "[a]n indigent Plaintiff with a claim of arguable merit is incapable of presenting his or her case, serious consideration should be given to appointing counsel." Id. at 156. The court of appeals likewise addressed the practical constraints confronted by district courts regarding the appointment of counsel, which include the ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation. Id. at 157.

The court of appeals also announced a series of factors that a trial court should consider and apply in ruling upon a motion for the appointment of counsel. Id. at 155-56. These factors include: (1) the litigant's ability to present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be necessary and the ability of the litigant to pursue investigation; (4) the litigant's capacity to retain counsel on his or her own behalf; (5) the extent to which a case is likely to turn on credibility determinations; and (6) whether the case will require testimony from expert witnesses.

A review of the petition in light of the factors announced in Tabron reveals the following.

(1) Petitioner's legal issues are not complex.

(2) The necessary factual investigation can be adequately pursued by Petitioner through the discovery process. Indeed, this Court already is in possession of the certified record of Petitioner's underlying criminal case.

(3) Petitioner appears to suffer from no impediment to pursuing his legal claims.

(4) Petitioner's claims do not appear to require extensive or complicated discovery.

(5) It is possible that credibility determinations could play a role in Petitioner's case.

(6) It is possible that this case could require the testimony of expert witnesses.

Four of the above-mentioned factors weigh against the appointment of counsel, and two do not. The two weighing in favor of appointment of counsel do so only slightly. Additionally, Petitioner has made no showing, or even asserted, that he has made any attempt to retain counsel himself. Having reviewed Petitioner's petition and supporting brief, as well as Respondents' answer, the undersigned concludes that the appointment of counsel would not be appropriate at this time in light of the above standard. Accordingly, this motion will be denied.

Next, this Court addresses Petitioner's motion for evidentiary hearing or, alternatively, a teleconference. (Doc. 24). In this motion, Petitioner argues that Respondents have in some manner hidden or removed the original sentencing order from the certified record of his case. Id. This argument is somewhat puzzling, as the original copy of Petitioner's sentencing December 11, 2001, sentencing order is located in the hard copy of Petitioner's state court records ...


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