The Appointment of Counsel in Collateral Review
Diana Cummiskey * | 24.4 | Comment | Citation: Diana Cummiskey, The Appointment of Counsel in Collateral Review, 24 U. Pa. J. Const. L. 939 (2022).
The writ of habeas corpus is an incredibly important aspect of the criminal justice system, allowing petitioners in state or federal custody to challenge the validity of their detention. These petitions encompass extraordinarily difficult and complex areas of law, involve constitutional and statutory interpretation, and need to comply with difficult procedural rules. These petitions are also often completely pro se, involving state or federal prisoners representing themselves.
Some courts, on the state and federal level, have implemented rules for appointing counsel in habeas corpus petitions. But these rules are inconsistent and differ greatly, leading to petitioners having no knowledge of whether or not counsel will actually be appointed. And even an attorney is appointed in some instances, there is no guarantee that the attorney will have sufficient experience or knowledge to adequately counsel the complex nature of habeas cases.
However, there is an upside. Because these rules, at least those local rules of the federal district courts, can be changed relatively easily, the judges could adopt favorable appointment mechanisms without much difficulty. But how can one determine what these rules are, or where to locate them? Which rules provide the best shot for habeas applicants to be appointed qualified counsel? To begin answering these questions, this article looks at the Pennsylvania state rules and the local rules of several district courts, with the local rules of each court serving as individual “cases,” to determine just how effective the mechanisms of appointment are, and in doing so, makes recommendations as to what rules courts should adopt to ensure more effective appointment of counsel in habeas proceedings.
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* J.D., University of Pennsylvania, 2021. With special thanks to Professor Eric Hintz for his feedback and wisdom in shaping this Comment, as well to Judge Stephanos Bibas and Judge Leonard Stark for giving their time and energy to discuss their respective courts. Most of all, thank you to the team at the University of Pennsylvania Journal of Constitutional Law for their support throughout the publication process. All errors are mine.