Diaz v. Thoms
- Edgardo Ramos
- 1:20-cv-00154
- U.S. District Court · Southern District of New York
- 5
In Diaz v. Thoms, Judge Cave granted more time to reply but denied pro bono counsel because Diaz showed too little merit and no effort to find a lawyer.
Richard Diaz received a final 45-day extension to file a reply, but he was denied a request for volunteer counsel. The underlying petition and Superintendent Thoms were not substantively affected by this order.
What happened
In Diaz v. Thoms, Richard Diaz asked for more time to file a reply in his petition and asked the court to seek a volunteer lawyer for him. The court granted the extension request but denied the request for counsel.
The court gave Diaz one final 45-day extension, until October 23, 2020, to mail a reply. It said the petition would be considered fully briefed if no reply was mailed by then. The court found that Diaz had not shown the required initial indication that his claim had merit and had not described efforts to find a lawyer himself.
Judge Sarah L. Cave issued the order on September 8, 2020. The order addressed timing and representation; it did not decide the underlying petition.
The detailed version
- Diaz v. Thoms · No. 1:20-cv-00154
- Edgardo Ramos
- Sept. 8, 2020
Background
Richard Diaz submitted a letter asking for two forms of relief: an extension of time to file a reply in his petition and appointment of pro bono counsel, meaning a volunteer lawyer. The order refers to Diaz as both the plaintiff and the petitioner and identifies Superintendent Thoms as the defendant.
Extension of Time
The court granted in part and denied in part the letter motion. It granted Diaz one final 45-day extension to submit a reply, if any, and set October 23, 2020, as the deadline. The court stated that if no reply was mailed by that date, it would treat the petition as fully briefed.
Request for Pro Bono Counsel
The court denied Diaz’s request for pro bono counsel. It explained that pleadings filed without a lawyer must be read liberally. Under the rule governing petitions under 28 U.S.C. § 2254, counsel must be appointed when an evidentiary hearing is needed. Outside that circumstance, civil litigants generally do not have a constitutional right to counsel. The court may ask a volunteer lawyer to represent a person who cannot afford counsel when the person’s position appears likely to have substance, but courts must make such requests sparingly.
The court said the main consideration is the likely merit of the case. Diaz claimed that he received ineffective assistance of counsel because his attorney did not advise him to accept a plea agreement and instead suggested that he could win the case. To establish ineffective assistance, a petitioner must show that the lawyer’s performance fell below an objective standard of reasonableness and that the error probably affected the result.
The court found that Diaz’s letter did not make the required initial showing that this claim had merit. It also found that Diaz did not mention any efforts to obtain a lawyer on his own. Considering those omissions, his ability to manage the case so far, and the limited availability of volunteer counsel during the COVID-19 pandemic, the court concluded that the interests of justice did not require seeking counsel for him. The court therefore denied the request for appointment of pro bono counsel.
Effect of the Order
The order resolved only the requests for additional briefing time and volunteer counsel. It did not rule on whether Diaz’s underlying petition should be granted or denied. The court also referred Diaz to the New York Legal Assistance Group and the Southern District of New York’s Pro Se Intake Unit for possible assistance.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.