Fulton v. Superintendent

Background

Jeremy Fulton, a prisoner at Clinton Correctional Facility, filed a petition under 28 U.S.C. § 2254 challenging his 2011 New York conviction after pleading guilty to first-degree rape and receiving a 22-year sentence. He alleged that his guilty plea was coerced and not knowing, voluntary, and intelligent; that his counsel was ineffective; that the prosecution violated his constitutional rights; that the state trial court abused its discretion; that his plea and appeal waiver were breached; and that he could not perfect his appeal because the state court allegedly lost his motion to remove counsel.

Fulton applied for pro bono counsel, meaning a request for a volunteer lawyer. He stated that his family had contacted Reverend Alfred Charles Sharpton, Jr.’s organization, National Action Inc., but that the organization was busy. The court had permitted Fulton to proceed without paying filing fees, and his federal petition remained pending. The court’s order addressed only his application for counsel.

Legal standard

The court explained that appointment of counsel in a civil case is not an automatic constitutional right. In a § 2254 case, counsel is generally required only when an evidentiary hearing is needed. Otherwise, the court may request that a volunteer lawyer represent an individual who cannot afford counsel when the person’s position appears likely to have substance.

In deciding such a request, courts consider the merits of the claims, the applicant’s ability to pay, efforts to obtain a lawyer, the availability of counsel, and the applicant’s ability to investigate facts and handle the issues without assistance. The merits receive the greatest weight, but the applicant need show only a threshold showing of merit—not that the claims would necessarily survive dismissal or a motion for summary judgment.

Court’s analysis

The court concluded that Fulton’s claims met the threshold showing of merit needed at this stage. It also relied on the prior finding that Fulton could not pay for private counsel. The court did not, however, determine that Fulton was entitled to a lawyer.

The court found that Fulton had made only one effort to obtain counsel: his family’s contact with National Action Inc. The court also found that Fulton had demonstrated an ability to manage the case. In particular, he had submitted a declaration responding to an order about possible time-bar issues and had prepared a memorandum presenting his arguments. The court further considered the COVID-19 pandemic and its effect on the already limited availability of pro bono counsel.

Disposition

Judge Sarah L. Cave denied Fulton’s application for pro bono counsel without prejudice to renewal. The Clerk of Court was directed to close the application. The order did not resolve the merits of Fulton’s § 2254 petition or determine whether his conviction should be upheld or overturned.