Barry v. New York State Department of Correction and Community Supervision

Background

Oumar Koumi Barry, proceeding without a lawyer, filed an application asking the court to request counsel for him. Barry stated that he did not have permanent housing because of what he called a “Substitute jail Order,” which made it difficult to receive mail and respond on time. He also said that he barely understood the law and legal requirements, and that several lawyers he contacted either could not assist him or did not take prison cases.

Legal standard

The court applied the standard from Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). Under that standard, the court must first consider whether the claims are likely to have legal substance. If that initial consideration favors appointment, the court may also consider matters such as the person’s ability to investigate important facts, whether conflicting evidence and cross-examination will be important, the person’s ability to present the case, the complexity of the legal issues, and any special reason why a lawyer would be more likely to produce a fair result.

Court’s reasoning

The court said it was too early to determine whether Barry’s claims were likely to have legal substance. The court also noted that it was not yet known whether a motion to dismiss would be filed, whether the case would reach evidence gathering, or whether it would proceed to trial. At that stage, despite the limitations Barry described, the court found that he was doing an adequate job protecting his rights.

Disposition

The court denied Barry’s application without prejudice to renewal at a later stage of the case. The order also directed the Clerk of Court to terminate ECF No. 13. The order addressed only Barry’s request for counsel; it did not decide the underlying claims against the defendant.