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Izzo v. Commonwealth of PA

United States District Court, M.D. Pennsylvania

December 9, 2019

BOBBY IZZO, Petitioner
v.
COMMONWEALTH OF PA, et al., Respondents

          MEMORANDUM

          Robert D. Mariani United States District Judge.

         I. Background

         Petitioner Bobby Izzo ("Petitioner"), filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner challenges a conviction and sentence imposed in the Luzerne County Court of Common Pleas. (Id.). Presently pending before the Court is Petitioner's motion for appointment of counsel. (Doc. 12). For the reasons set forth below, the Court will deny the motion.

         II. Discussion

         Although prisoners have no constitutional or statutory right to appointment of counsel in federal habeas corpus proceedings, Coleman v. Thompson, 501 U.S. 772, 752 (1991), the Court has broad discretionary power to appoint counsel to a financially eligible habeas petitioner if "the interests of justice so require..." See 18 U.S.C. § 3006A(a)(2);[1] see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993), aff'd, 275 F.3d 33 (3d Cir. 2001). The United States Court of Appeals for the Third Circuit has stated that appointment of counsel for an indigent litigant should be made when circumstances indicate "the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).

         The initial determination to be made by the Court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the petitioner's case has some arguable merit in fact and law. Montgomery, 294 F.3d at 499. If a petitioner overcomes this threshold hurdle, other factors to be examined are:

1.the claimant'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 claimant to pursue investigation;
4.the claimant's capacity to retain counsel on his or her own behalf;
5.the extent to which the case is likely to turn on credibility determinations; and
6.whether the case will require testimony from expert witnesses.

Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).

         Assuming arguendo that the petition has merit, Petitioner fails to set forth any special circumstances warranting appointment of counsel. See Tabron, 6 F.3d at 155-56. Petitioner requests counsel due to the alleged complexity of the case, and his limited education. (Doc. 12). However, thus far, Petitioner has demonstrated the ability to properly and forcefully prosecute his claims. Despite Petitioner's incarceration, investigation of the facts is not beyond his capabilities and he is familiar with the facts of his case. See Reesev. Fulcomer, 946 F.2d 247, 263-64 (3d Cir. 1991) (identifying merit and complexity of petitioner's claims, as well as the petitioner's ability to investigate facts and ...


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