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BROWN v. WILLIAMS

April 1, 1993

HENRY BROWN, Petitioner,
v.
MELVIN WILLIAMS, Superintendent, Wyoming Correctional Facility, Respondent.



The opinion of the court was delivered by: CAROL E. HECKMAN

 This petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 was referred to the undersigned by the Hon. William M. Skretny to hear and report on all proceedings necessary to a determination of the merits of the factual and legal issues presented. Petitioner has filed a motion for appointment of counsel under 18 U.S.C. § 3006A and 28 U.S.C. § 1915, *fn1" For the following reasons, Petitioner's motion for appointment of counsel is denied, and it is recommended that the District Court dismiss the petition.

 Rule 8(c) of the Rules Governing § 2254 Cases in the United States District Courts provides for appointment of counsel for a petitioner "if an evidentiary hearing is required . . . [or] if the interest of justice so requires." Further, 28 U.S.C § 1915(d) provides:

 
The court may request an attorney to represent any [indigent] person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

 In exercising its discretion to appoint counsel to indigents in civil cases, the Court is guided by the factors set forth in Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989), and Hodge v. Police Officers 802 F.2d 58 (2d Cir. 1986). Under those cases, the Court should "first determine whether the indigent's position seems likely to be of substance." Hodge, supra, 802 F.2d at 61. Only if the claim meets this threshold requirement should the Court consider "secondary" criteria, such as the indigent's ability to obtain representation independently, his or her ability to handle the case without assistance in light of the required factual investigation, the complexity of the legal issues, and the need for expertly conducted cross-examination to test veracity. Cooper, supra, 877 F.2d at 172.

 In making the threshold inquiry in this case, it has become clear from my review of the state court records filed with Respondent's answer that Petitioner has failed to exhaust his state court remedies as to the claims presented in this petition. I therefore deny Petitioner's request for appointment of counsel, and recommend that the petition be summarily dismissed by the District Court in accordance with the Habeas Corpus Rules.

 BACKGROUND

 Petitioner was convicted of criminal possession of a forged instrument in the second degree, attempted petit larceny, and criminal possession of stolen property in the fifth degree, after a jury trial in New York State Supreme Court. He was sentenced as a second felony offender to concurrent prison terms of three and one-half to seven years. Petitioner was subsequently released on parole but remains "in custody" for the purposes of a habeas corpus petition under § 2254. See, e.g., Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963)).

 The indictment charged that Petitioner was involved with two other individuals, Charles Bell and Lawrence Evans, in an attempt to cash a stolen and forged check on May 17, 1988. On February 22, 1989, Evans entered a plea of guilty. Petitioner and Bell were tried together in a trial commencing on February 28, 1989. On March 3, 1989, the jury found both Petitioner and Bell guilty of the crimes listed above.

 At the trial, Linda Bell (Charles Bell's sister-in-law) testified that on or about May 17, 1988, she accompanied Petitioner and Charles Bell to the Brisbane Building in downtown Buffalo (T. 207). *fn2" According to Ms. Bell, Charles Bell dropped Petitioner off. Petitioner went into the Brisbane Building, and "came back out with some checks" (id.). In Linda Bell's presence, Petitioner filled out the front portion of a check belonging to attorney Thomas Twist, which Linda Bell endorsed on the back (T. 169-71; 174-75; 188). She and Charles Bell then tried unsuccessfully to cash the check at two different banks (T. 166-74). They were arrested when Ms. Bell returned to the second bank to retrieve the identification she had left there (T. 173-74). Petitioner was arrested on July 5, 1988. Linda Bell pled guilty to possession of a forged instrument in connection with this incident.

 The jury also heard the testimony of Robert Kistner, who was qualified by the trial court as an expert witness in handwriting (T. 413-14). Mr. Kistner testified that he examined the check written in the name of Thomas Twist, compared it to a handwriting exemplar obtained from Petitioner, and determined that Petitioner "probably authored" the front portion of the check (T. 421). The check and handwriting exemplar were admitted as evidence in the case (T. 403-06; 420), and were available to the jury for their inspection (T. 448-49). Mr. Kistner also testified that he "was being ultra conservative when [he] gave an opinion of probable authorship; that [he] could have easily given an opinion of highly probable . . ." (T. 449).

 On March 16, 1989, after Petitioner's trial, Lawrence Evans signed an affidavit in which he stated that, on or about February 21, 1988, in exchange for a promise of a reduced sentence, he told the prosecuting attorney that he did not know Petitioner, and that it was not Petitioner but another individual involved in the "check ring" (State Court Records, Exh. B). Evans did not testify at Petitioner's trial.

 On April 4, 1989, Petitioner moved to set aside the verdict and vacate the judgment based on the information contained in the Evans affidavit. Petitioner claimed that the prosecution knew about this exculpatory evidence prior to trial, but failed to disclose it under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Petitioner also claimed that the Evans affidavit contained new evidence which, had it been presented to the jury, would have resulted in a more favorable verdict. This motion was summarily denied by the trial court on April 24, 1989 (S. 2-6).

 On April 28, 1989, Petitioner filed a notice of appeal. As grounds for the appeal, Petitioner argued (1) that the trial court committed reversible error by denying his motion to set aside the verdict based on the prosecution's failure to disclose Brady material, (2) that the trial court erred by admitting evidence of uncharged crimes, and (3) that he was denied his constitutional right to effective assistance of counsel (State Court Records, Exh. A).

 In a memorandum order dated June 22, 1990, the Appellate Division, Fourth Department, denied Petitioner's appeal. People v. Brown, 162 A.D.2d 1030, 557 N.Y.S.2d 812 (4th Dept., June 22, 1990). According to the Court, Petitioner was not entitled to a new trial based on a Brady violation, or based on newly discovered evidence, since he failed to show that there was a reasonable probability that the result of the trial would have been different had the evidence been disclosed. Id., 162 A.D.2d at 1031, 557 N.Y.S.2d at 813.

 By letter dated July 26, 1990, Petitioner applied for a certificate granting leave to appeal, in which appellate counsel set forth the same grounds as presented to the Appellate Division (State Court Records, Exh. D). The New York Court of Appeals denied ...


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