Tashbook v. Petrucci
- Kenneth Karas
- 7:20-cv-05318
- U.S. District Court · Southern District of New York
- 3
In Tashbook v. Petrucci, Judge Davison denied without prejudice Robert Tashbook’s request for appointed counsel in his federal custody petition.
Robert Tashbook’s request for appointed counsel was denied without prejudice; the court left open reconsideration if an evidentiary hearing becomes necessary.
What happened
Tashbook v. Petrucci concerns Robert Tashbook’s request for a lawyer while pursuing federal court relief related to COVID-19 restrictions at the Federal Correctional Institution in Otisville, New York. Tashbook was representing himself and also sought an evidentiary hearing.
The court explained that people seeking this type of federal custody review generally do not have an automatic right to a lawyer. Appointment is discretionary, and courts first consider whether the claims are likely to have substance, followed by factors such as complexity, the person’s ability to present the case, the need for factual investigation or cross-examination, and any special reason supporting appointment.
Judge Davison denied the request without prejudice. The court found that the claim was limited and not particularly complex, that Tashbook had competently presented the issues, and that the case did not appear to require credibility determinations or expert cross-examination. The court said it would reconsider appointing counsel if an evidentiary hearing became necessary.
The detailed version
- Tashbook v. Petrucci · No. 7:20-cv-05318
- Kenneth Karas
- Jan. 5, 2021
Background
Robert Tashbook, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2241 seeking federal custody-related relief arising from COVID-19 restrictions at the Federal Correctional Institution in Otisville, New York. He moved for appointment of counsel and also sought an evidentiary hearing in connection with his claims.
Legal standard
The court stated that there is no constitutional right to appointed counsel in federal custody-review proceedings. Appointment is discretionary. Applying standards used for appointing counsel to indigent civil litigants, the court first considers whether the claims are likely to have substance. If that threshold is met, the court considers additional factors, including the petitioner’s ability to present the case, the factual and legal complexity, the need for investigation, the need for cross-examination to test credibility, and any special reason why counsel would likely produce a fairer result. Courts may also consider whether an evidentiary hearing is needed.
Court’s reasoning
The court noted that evidentiary hearings are available in federal custody-review proceedings only in limited circumstances and that it had not determined that a hearing was appropriate. Even assuming Tashbook’s claims met the initial likelihood-of-substance threshold, the court concluded that the additional factors did not favor appointing counsel. It described the claim as limited and not particularly complex, found that Tashbook had competently presented the issues, and stated that the issues did not appear to depend on credibility disputes or conflicting evidence requiring expert cross-examination. The court also found no special reason why appointing counsel would produce a fairer result.
Disposition
The court denied Tashbook’s request for appointed counsel without prejudice. It stated that it would reconsider appointment if an evidentiary hearing became necessary. The Clerk was directed to terminate the motion, docketed as Dkt. #20.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.