Herrmann v. United States
- Lorna Schofield
- 1:20-cv-03995
- U.S. District Court · Southern District of New York
- 3
In Herrmann v. United States, Judge Schofield denied Herrmann’s request for free counsel without prejudice to renewal.
LaSalle Herrmann’s request for volunteer counsel was denied, but he may renew the request later in the case.
What happened
In Herrmann v. United States, LaSalle Herrmann asked the court to provide a volunteer lawyer for his motion challenging his conviction and sentence under a federal law allowing such challenges.
The court said Herrmann had not shown that he could not afford a lawyer and that it could not yet determine whether his claim was likely to have merit. The court also found that he could present his case, and that the case did not involve complex facts or conflicting evidence requiring a lawyer’s investigation or questioning of witnesses.
Judge Lorna G. Schofield denied the request for counsel without prejudice, meaning Herrmann may renew it later in the case. The court also denied special fee-free status for any appeal from this order.
The detailed version
- Herrmann v. United States · No. 1:20-cv-03995
- Lorna Schofield
- May 29, 2020
Background
LaSalle Herrmann, proceeding without a lawyer, asked the court to provide him with pro bono counsel—a volunteer attorney—for his motion under 28 U.S.C. § 2255 to vacate his conviction. Herrmann argued that his conviction and sentence should be vacated based on the Supreme Court’s decision in United States v. Davis.
Legal standard
The court explained that, in civil matters, federal courts generally are not required to provide an indigent litigant with counsel. Under 28 U.S.C. § 1915(e)(1), the court may request that a lawyer volunteer, but it cannot require an attorney to accept the appointment or pay the attorney. Requests for volunteer counsel are therefore granted sparingly.
Under the factors identified by the Court of Appeals for the Second Circuit in Hodge, the court first considers whether the person has shown that he cannot afford counsel and whether the claim appears likely to have merit. If those threshold requirements are met, the court also considers the person’s ability to investigate important facts and present the case, whether conflicting evidence will require questioning witnesses, the complexity of the legal issues, and whether counsel would likely lead to a fairer result.
Court’s reasoning
The court found that Herrmann had not demonstrated that he was indigent. It also stated that, at that point, it could not determine whether his claim was likely to have substance.
The court further found that the remaining Hodge factors weighed against providing counsel. Herrmann’s motion showed that he could present his case. The court also concluded that his claim did not involve complex facts or conflicting evidence requiring expert investigation or questioning of witnesses, and that representation would not make the case quicker or more just by clarifying the issues or shaping witness questioning.
Ruling
Judge Lorna G. Schofield denied Herrmann’s request for the court to appoint counsel. The denial was without prejudice to a renewed application later in the case. The court also certified that an appeal from the order would not be taken in good faith and denied fee-free status for purposes of an appeal. The clerk was directed to mail the order to Herrmann.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.