NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

:

BRIAN KEITH BRAGG, :

: Civil Action No. 11-1923 (JAP)

Petitioner, :

:

v. : O P I N I O N

:

PAUL K. LAGANA, :

:

Respondent. :

________________________________:

APPEARANCES:

Brian Keith Bragg, Pro Se

#648827/430637B

Northern State Prison

P.O. Box 2300

Newark, NJ 07114

PISANO, District Judge

Petitioner, Brian Keith Bragg, filed a petition for a writ

of habeas corpus, pursuant to 28 U.S.C. § 2254, and a motion to

appoint counsel (docket entry 5), which remain pending before

this Court. Under separate Order, this Court has granted

Petitioner’s application to proceed in forma pauperis, and has

ordered the Respondent to answer the petition. 

BACKGROUND

Petitioner filed this habeas petition pro se, arguing that

his constitutional rights were violated due to an error in

application of his jail credits. See Petition, Docket entry 1. 

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Petitioner seeks the appointment of counsel due to the

complexity of the issues, that he is unable to afford counsel,

and that he lacks legal skills and the ability to investigate. 

Motion, docket entry 5.

DISCUSSION

There is no Sixth Amendment right to appointment of counsel

in habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551,

555 (1987)(“Our cases establish that the right to appointed

counsel extends to the first appeal of right, and no further”);

Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)(holding

that there is no statutory or constitutional right of counsel

conferred upon indigent civil litigants); Reese v. Fulcomer, 946

F.2d 247, 263 (3d Cir. 1991), cert. denied, 503 U.S. 988

(1992)(“there is no ‘automatic’ constitutional right to counsel

in federal habeas corpus proceedings), superseded on other

grounds by statute, 28 U.S.C. § 2254(d).

Title 18 of the United States Code, section 3006A(a)(2)(B),

states that counsel may be appointed to an indigent habeas

petitioner where the “interests of justice so require.” In 1

determining whether the interests of justice require appointment

of counsel, the Court must examine whether or not the petitioner

has presented a meritorious claim. See Biggins v. Snyder, 2001

Likewise, 28 U.S.C. § 1915(e)(1) provides that a court 1

may “request an attorney to represent any person unable to afford

counsel.”

2

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WL 125337 at * 3 (D. Del. February 8, 2001)(unpubl.)(citing Reese

v. Fulcomer, 946 F.2d at 263-64)(other citations omitted). Next,

the Court must determine whether the appointment of counsel will

benefit the petitioner and the Court by examining the legal

complexity of the case and the petitioner’s ability to present

his claims and investigate facts. See id. (citing Reese, 946

F.2d at 264; Parham v. Johnson, 126 F.3d 454, 457-58 (3d Cir.

1997); Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993))(other

citations omitted). “Where these issues are ‘straightforward and

capable of resolution on the record,’ or when the petitioner has

‘a good understanding of the issues and the ability to present

forcefully and coherently his contentions,’ the court would not

abuse its discretion in declining to appoint counsel.” Id.

(citations and quotations omitted); see also Paul v. Attorney

General of New Jersey, 1992 WL 184358 at * 1 (D.N.J. July 10,

1992)(unpubl.)(stating that the factors the court should consider

in appointing counsel under § 3006A include: “(i) the likelihood

of success on the merits; (ii) the complexity of the legal issues

raised by the complaint; and (iii) the ability of the prisoner to

investigate and present the case.”).

In the instant case, the Court must first determine if

Petitioner states non-frivolous, meritorious claims. In his

petition, Petitioner argues that he has not been awarded jail

credits. From the face of the petition, these contentions do not

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appear to be frivolous, and may or may not have merit. See

Neitzke v. Williams, 490 U.S. 319, 325 (1989)(in actions filed

pursuant to 42 U.S.C. § 1983, a “frivolous” complaint is defined

as one which has “inarguable legal conclusions” or “fanciful

factual allegations”).

Next, the Court must examine whether the appointment of

counsel will benefit the Court and Petitioner. The instant case

seems to be fairly “straightforward and capable of resolution on

the record.” See Parham, 126 F.3d at 460 (citing Ferguson v.

Jones, 905 F.2d 211, 214 (8th Cir. 1990)). Bragg has shown his

capability of proceeding pro se by filing the petition and

instant motion with attachments, and letters to the Court. As a

prisoner, Bragg does have access to the prison law library and a

limited ability to investigate the law. See Jones v. Kearney,

2000 WL 1876433 at *2 (D. Del. December 15, 2000)(unpubl.). 

Additionally, Petitioner’s claims are not complex and are

capable of resolution on the record. This Court’s review of the

petition is limited to reviewing whether the state court

adjudications:

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

4

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See 28 U.S.C. § 2254(d). With regard to Petitioner’s claims, the

record to be provided by Respondent should provide the Court with

the information needed to resolve this case. It does not appear

that expert testimony will be required.

At this early point in the proceedings, the Court will deny

Petitioner’s motion to appoint counsel, as it does not appear

that the appointment of counsel would benefit both Petitioner and

the Court. However, the denial will be without prejudice to

Petitioner refiling his motion in the future if necessary to the

case.

CONCLUSION

Based on the foregoing, Petitioner’s motion for counsel will

be denied. An appropriate Order accompanies this Opinion.

/s/ Joel A. Pisano 

JOEL A. PISANO

United States District Judge

Dated: December 21, 2011

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