Wilkinson v. Collado

Background

Keith Wilkinson, the petitioner, asked the court to appoint pro bono counsel—meaning a lawyer provided without charge—for his petition under 28 U.S.C. § 2254, the federal statute allowing a state prisoner to challenge custody in federal court. Wilkinson filed the request on March 23, 2022. Jaifa Collado, identified as the superintendent and the respondent, opposed it, and Wilkinson replied.

The court had previously allowed Wilkinson to proceed without paying filing fees, which showed that he could not afford counsel. The court also found that, based on the face of the petition, at least one of his claims might have merit. The court explained that a habeas petitioner has no automatic constitutional right to appointed counsel, but a court may appoint counsel when the person cannot afford representation and the interests of justice require it.

Reasons for Denying Counsel

The court concluded that appointment was not warranted at that point. It found that Wilkinson had already litigated the matter extensively without counsel, including filing the federal petition and several submissions in state court, one of which had succeeded. The court also found that he had shown an ability to gather relevant facts and present his arguments clearly. His petition relied substantially on arguments made by his appellate lawyer before the state appellate court.

The court further found that Wilkinson had not identified special circumstances supporting appointment, such as language difficulties or mental-health problems, and that the petition did not present claims so complex or unusual that a lawyer’s assistance would be particularly helpful. The court also stated that the case appeared to require decisions about legal issues based on the written submissions, rather than an evidentiary hearing or additional factual investigation.

Wilkinson argued that counsel was needed to help obtain transcripts and other state-court records. The respondent supplied sealed copies of those records, and the court said it could review them insofar as they related to the claims in the petition. The court also noted that a state appellate-court order allowed Wilkinson to review the records in the presence of his state appellate counsel.

Wilkinson also referred to possible discovery and cross-examination concerning credibility and conflicts. The court found those assertions conclusory and unsupported. It explained that discovery in a federal habeas case is not automatic and requires a showing of good cause. Because Wilkinson did not explain why discovery or cross-examination was necessary, the court found those requests insufficient to justify appointing counsel.

Unexhausted Claims

The court addressed claims Wilkinson discussed that were not properly included in the petition or had not yet been litigated in state court. These included an ineffective-assistance claim rejected as outside the existing record on his second direct appeal, prosecutorial misconduct, and vindictive sentencing. The court agreed with the respondent that these claims were unexhausted, meaning Wilkinson had not yet given the state courts the required opportunity to consider them. The court found that these claims were not sufficiently substantial to support appointment of counsel at that stage and declined to review certain correspondence from appellate counsel concerning an unexhausted prosecutorial-misconduct argument.

The court stated that Wilkinson could file a separate application if he wanted the federal case paused while he pursued those claims in state court.

Ruling

Judge Judith C. McCarthy denied Wilkinson’s application for appointed counsel with leave to renew if circumstances change. The court said it could appoint counsel later if further review showed that appointment was justified. It directed the clerk to terminate the pending application and mail Wilkinson a copy of the order. The order decided only the request for counsel; the opinion did not decide the underlying federal habeas petition.