Terry v. Stamford

Background

DuWayne L. Terry was proceeding without a lawyer and had been allowed to proceed without paying court fees. He moved for appointment of counsel under 28 U.S.C. § 1915(e)(1), a statute allowing a court to request that a lawyer volunteer to represent a person who cannot afford counsel. The court explained that civil litigants have no automatic right to a lawyer, that the court cannot compel an attorney to serve, and that the court has no funds to pay counsel in civil cases.

Court’s analysis

The court applied the factors established by the U.S. Court of Appeals for the Second Circuit in Hodge. Those factors include whether the litigant is indigent, whether the claims appear likely to have substance, the litigant’s ability to investigate and present the case, the importance of cross-examination, the complexity of the legal issues, and whether counsel would be more likely to produce a fair result.

The court found that Terry was indigent. Treating his allegations as true, it also found that his claims were likely to be of substance because he alleged serious issues concerning his continuing confinement and claimed that he had been held almost two years beyond his conditional release date. The court said the allegations implicated the Eighth and Fourteenth Amendments.

The court further found that the remaining factors favored counsel. In particular, Terry’s claims concerning the validity of his continued custody raised complex procedural questions about whether relief should be sought through a civil-rights action under 42 U.S.C. § 1983 or through a federal petition challenging custody. The court concluded that counsel could address those issues more efficiently and help produce a quicker and fairer result.

Disposition

The court granted Terry’s Application for Appointment of Counsel. It clarified that this meant requesting a volunteer attorney, not ordering an attorney to represent Terry. The court warned that a volunteer might not be found and that Terry would remain responsible for the case unless an attorney agreed to represent him and filed a notice of appearance.

The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied fee-free status for the purpose of an appeal. The Clerk was directed to mail Terry a copy of the order and record service on the docket.