United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
DAVID STEWART CERCONE
the Court is an appeal (ECF No. 43) filed by Petitioner Joseph
Smith (“Smith” or “Petitioner”)
requesting review of the magistrate judge's Order dated
April 4, 2019 (ECF No. 42) (the “Order”), which
denied without prejudice Petitioner's motion for
appointment of counsel.
review of the matters raised by Petitioner, the Court
concludes that the Order appealed from is neither clearly
erroneous nor an abuse of discretion. Therefore,
Petitioner's appeal will be dismissed.
Federal Magistrates Act, 28 U.S.C. §§ 631-639,
provides two separate standards for judicial review of a
magistrate judge's decision: (i) “de novo”
for magistrate resolution of dispositive matters, 28 U.S.C.
§ 636(b)(1)(B)-(C), and (ii) “clearly erroneous or
contrary to law” for magistrate resolution of
nondispositive matters. 28 U.S.C. § 636(b)(1)(A).
Accord Fed.R.Civ.P. 72(a), (b); Local Civil Rule
72.1(C)(2); see Cipollone v. Liggett Group, Inc.,
785 F.2d 1108, 1113 (3d Cir. 1986).
Order of April 4, 2019, was for a non-dispositive matter
under 28 U.S.C. § 636(b)(1)(A) and, thus, will not be
disturbed unless it is found to be clearly erroneous or
contrary to law. A finding is clearly erroneous “when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, N.C. , 470 U.S.
564, 573 (1985) (citing United States v. United States
Gypsum Co., 333 U.S. 364 (1948)).
review of the record in this matter, the Court finds that the
decision of the magistrate judge to deny Plaintiff's
request for appointment of counsel was neither clearly
erroneous nor contrary to law.
Petitioner's second request for appointment of counsel.
As the magistrate judge explained, there is no federal right
to habeas corpus counsel, Pennsylvania v. Finley,
481 U.S. 551, 555 (1987) (“[the Supreme Court[ ha[s]
never held that prisoners have a constitutional right to
counsel when mounting collateral attacks upon their
convictions”), and, because this is a noncapital case,
Petitioner has no statutory right to counsel either. It is
within the Court's discretion to appoint a financially
eligible habeas petitioner counsel if it determines that the
interests of justice so require. 28 U.S.C. § 2254(h); 18
U.S.C. § 3006A(a)(2)(B); Section IV.A.2.b of the
Criminal Justice Act Plan of the United States District Court
for the Western District of Pennsylvania. Under Rule 6(a) of
the Rules Governing Section 2254 Cases in the United States
District Courts, the Court must appoint counsel to represent
a financially eligible petitioner if it authorizes discovery
and determines that appointment is "necessary for
effective discovery[.]" Under Rule 8(c), the Court must
appoint counsel to represent a financially eligible
petitioner if it determines that "an evidentiary hearing
magistrate judge has determined that there are no grounds to
support the appointment of counsel at this time and,
therefore, denied without prejudice Petitioner's motion
to appoint counsel. As the magistrate judge explained, in the
event the Court subsequently determines that this case is one
in which it should exercise its discretion and appoint
Petitioner counsel, or is one in which it must appoint
counsel for him, the Court will do so in accordance with its
Criminal Justice Act Plan. Except in those habeas corpus
cases where an evidentiary hearing is required, or
“necessary for effective discovery, ” and not
until that time, is the appointment of counsel required.
See Rules Governing 2254 in the United States
District Courts, Rules 6(a) and 8(c). Prior to such
occurrence, the appointment of counsel is discretionary if
the Court determines that the interests of justice so
these reasons, the Court finds that Petitioner has not shown
that the magistrate judge's ruling was clearly erroneous
or contrary to law. Accordingly, Petitioner's appeal is