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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

REGINALD IRISH,

Petitioner,

vs. Case No. 5:11cv141/RH/EMT

WARDEN PAIGE AUGUSTINE,

Respondent.

_________________________________/

O R D E R

This matter is before the court on Petitioner’s Motion Requesting Appointment of Counsel

(Doc. 31). The appointment of counsel in civil cases is not a constitutional right; rather, it is “a

privilege that is justified only by exceptional circumstances, such as where the facts and legal issues

are so novel or complex as to require the assistance of a trained practitioner.” Poole v. Lambert, 819

F.2d 1025, 1028 (11th Cir. 1987). This rule extends to post-conviction proceedings. Pennsylvania

v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); Fowler v. Jones, 899 F.2d 1088

(11th Cir. 1990). 

Although there is no constitutional authority for the appointment of counsel in civil cases,

there is statutory authority for appointing counsel in habeas corpus actions brought under 28 U.S.C.

§§ 2241, 2254, and 2255; it may be found in the Criminal Justice Act (CJA), 18 U.S.C.

§ 3006A(2)(B). Section 3006(a)(2)(B) of the CJA provides in relevant part: “Whenever the United

States magistrate judge or the court determines that the interests of justice so require, representation

may be provided for any financially eligible person who . . . is seeking relief under section 2241,

2254, or 2255 of title 28.” 18 U.S.C. § 3006(a)(2)(B). Federal courts generally have endorsed the

appointment of counsel to represent legally unsophisticated prisoners who are financially unable to

obtain counsel in: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal

or mixed legal and factual questions; (3) cases involving uneducated or mentally or physically

impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in trying

the claims; (5) cases in which “the indigent is in no position to investigate crucial facts” and (6)

factually complex cases. James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and

Procedure, § 12.3b (5th ed. 2005). The Eleventh Circuit instructs that counsel must be appointed

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for an indigent federal habeas petitioner under 18 U.S.C. § 3006A(g) “only when the interests of

justice or due process so require.” Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983). 

Additionally, the procedural rules governing § 2254 cases require the appointment of counsel in two

circumstances: (1) where the court has authorized discovery upon a showing of good cause, and

appointment of counsel is necessary for effective discovery, and (2) where the court has determined

that an evidentiary hearing is warranted. Rules Governing Section 2254 Cases 6(a), 8(c) (Habeas

Rules). Taken together with the Habeas Rules, the decisions under section 3006A(a)(2)(B) embody

a presumption favoring appointment of counsel for legally unsophisticated prisoners as long as the

petition (1) is not frivolous, that is, as long as it survives summary dismissal pursuant to Habeas

Rule 4 because it presents a “triable” issue or includes a “colorable claim” and (2) requires further

significant or sophisticated factual or legal development. Liebman, supra. A district court does not

abuse its discretion by declining to appoint counsel where the issues in the case are “straightforward

and capable of resolution on the record” or the petitioner has a “good understanding of the issues

and the ability to present forcefully and coherently his contentions.” See Reese v. Fulcomer, 946

F.2d 247, 264 (3d Cir. 1991). 

At this time, the issues in the case appear to be straightforward and capable of resolution on

the record. Furthermore, Petitioner has thus far presented his arguments in a forceful, coherent

manner. Additionally, the court has neither authorized discovery nor determined that an evidentiary

hearing is warranted. Therefore, Petitioner is not entitled to appointment of counsel. Appointment

of counsel will be considered at a later time if the need for counsel becomes evident or if the court

determines that discovery or an evidentiary hearing is warranted.

Accordingly, it is ORDERED:

Petitioner’s Motion Requesting Appointment of Counsel (Doc. 31) is DENIED without

prejudice.

DONE AND ORDERED this 9th day of August 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case No.: 5:11cv141/RH/EMT

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