McCray v. Royce

Background

Robert L. McCray, the petitioner, applied for the court to request pro bono counsel—a volunteer lawyer—to represent him in his petition challenging his criminal convictions. The court had already granted his request to proceed without paying court fees. McCray stated that he was incarcerated, unemployed, had no assets or property, received $792 every two weeks from the “state” in his first application, and occasionally received $10 or $20 from family members in his later counsel application.

McCray’s petition concerned 2014 convictions for second-degree arson and three counts of criminal contempt in Bronx County Supreme Court. He claimed ineffective assistance of counsel under the Sixth Amendment and denial of a fair trial under the due-process protections of the Fifth and Fourteenth Amendments. He also appeared to ask the court to pause the case while a related petition remained pending in the New York Appellate Division, First Department.

Legal standard

The court explained that people challenging convictions through a habeas petition do not automatically have a right to a lawyer. Under federal law, however, a court may request a volunteer lawyer for a person who cannot afford counsel when the interests of justice require it. Courts must consider whether the person’s claims appear likely to have substance and then consider factors such as the person’s ability to investigate important facts, whether conflicting evidence will require questioning witnesses, the person’s ability to present the case, the complexity of the legal issues, and any special reason counsel would help produce a fair result.

Court’s analysis

The court found that McCray had sufficiently shown that he was indigent, meaning unable to afford counsel. But the court could not yet determine whether his claims were likely to have substance because the case was in its early stages. Royce had been served with the petition but had not appeared or opposed it, and the court did not yet have the underlying court records relevant to McCray’s claims.

The court also concluded that the other factors weighed against granting the request at that time. McCray’s application provided financial information but did not explain why counsel was needed in this case or identify circumstances supporting appointment of a lawyer.

Disposition

Judge Katharine H. Parker denied McCray’s Application for the Court to Request Counsel, without prejudice. The court directed that, if McCray wanted to apply again, he should wait until after Royce filed an opposition to the petition. The order did not decide the merits of McCray’s challenge to his convictions.