The opinion of the court was delivered by: LOWE
MARY JOHNSON LOWE, U.S.D.J.
Before the Court is the motion of petitioner Fernando Garcia ("Petitioner"), pursuant to 28 U.S.C. § 2254 ("Section 2254"), for a writ of habeas corpus. Petitioner also requests appointment of counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B). For the reasons stated below, Petitioner's request for appointment of counsel and his petition for a writ of habeas corpus are denied.
On October 24, 1985, after a three-day jury trial in the Supreme Court of New York, Bronx County, Petitioner was convicted of manslaughter in the first degree. On November 14, 1985, Petitioner was sentenced to a minimum of ten years imprisonment and a maximum of twenty years imprisonment. On direct appeal to the Appellate Division of the Supreme Court of New York, First Department, Petitioner argued that: (1) the trial court violated Petitioner's due process rights by holding an ex parte proceeding with a trial witness without notice to defense counsel and outside the presence of Petitioner ("Due Process Claim"), and (2) the trial court violated Petitioner's due process rights by refusing to charge second-degree manslaughter as a lesser included offense of second-degree murder ("Jury Charge Claim"). On September 23, 1986, the Appellate Division affirmed the conviction without opinion. People v. Garcia, 123 A.D.2d 527, 506 N.Y.S.2d 501 (1st Dep't 1986).
On October 30, 1986, Petitioner, through counsel Linda Stagno, sought leave to appeal to the New York State Court of Appeals. Petitioner's application for leave to appeal only raised the Jury Charge Claim. On December 18, 1986, the New York State Court of Appeals denied Petitioner's request for leave to appeal. People v. Garcia, 69 N.Y.2d 711, 504 N.E.2d 405 (1986).
On April 3, 1987, Petitioner filed a petition, pursuant to Section 2254, for a federal writ of habeas corpus, presenting the Due Process Claim and the Jury Charge Claim. Petitioner's first habeas petition also alleged that the New York State Appellate Courts violated Petitioner's right to appeal by confirming his conviction without an evidentiary hearing. On February 23, 1988, Magistrate Judge Kathleen Roberts issued a Report and Recommendation, finding that Petitioner had not exhausted his first and third claims in state court, but that Petitioner had properly exhausted the Jury Charge Claim. See Report and Recommendation dated February 23, 1988, at 6. Because the petition raised both exhausted and unexhausted claims, the Magistrate Judge recommended dismissal of the petition without prejudice. See id. Respondent objected to the Magistrate Judge's finding that Petitioner exhausted the Jury Charge Claim in state court in terms of a federal constitutional issue. On October 28, 1988, the Court affirmed the Magistrate Judge's findings and dismissed the petition "without prejudice to the filing of a new petition once all available state remedies have been exhausted." Op. and Order dated October 28, 1988 at 5.
On July 4, 1994, Petitioner applied to the Appellate Division of New York, First Department, for a writ of error coram nobis. Petitioner claimed ineffective assistance of appellate counsel for failure to raise the Due Process Claim in Petitioner's application for leave to appeal to the New York State Court of Appeals. On March 21, 1995, the Appellate Division, First Department denied Petitioner's application.
On August 11, 1995, Petitioner filed the instant petition, pro se, for a writ of habeas corpus on the grounds that: (1) the trial court had erroneously refused to charge second-degree manslaughter, and (2) appellate counsel's failure to raise the Due Process Claim before the Court of Appeals amounted to ineffective assistance of appellate counsel. In lieu of submitting reply papers, Petitioner requested, by letter dated January 13, 1997, that the Court appoint counsel to assist him with the instant petition. See Letter from Garcia to Court, dated January 13, 1997, at 1.
I. Appointment of Counsel
In determining whether to appoint counsel to an indigent litigant, a court should consider the following factors: (1) the merits of the indigent litigant's claims, (2) the litigant's ability to pay for private counsel, (3) the litigant's efforts to obtain counsel, (4) the availability of counsel, (5) the litigant's ability to gather facts without the assistance of counsel, (6) the complexity of the legal issues, and (7) the need for expertly conducted cross-examination. Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); see also Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986). The court, however, "should first determine whether the indigent's position was likely to be of substance." Hodge, 802 F.2d at 60. If the litigant's claims do not meet this threshold requirement, the court need not consider the other criteria. Id.; Cooper, 877 F.2d at 172. As the Court will illustrate below, Petitioner's claims do not satisfy the threshold merit requirement and thus the Court need not address the additional factors for appointment of counsel. Accordingly, the Court denies Petitioner's request for appointment of counsel.
II. Habeas Corpus Petition
A. Applicability of the Antiterrorism Act
Respondent argues that the petition should be dismissed under several provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "Act") which was signed into law on April 24, 1996. See Resp't's Mem. at 4 (discussing Public L. No. 104-132, 110 Stat. 1214 (1996)). Specifically, Respondent contends that: (1) the petition is time-barred under Section 101 of the Act, which requires petitions to be filed within one year after the judgment becomes final,
and (2) the petition is barred by Section 106 of the Act, which imposes restrictions on claims presented in successive petitions. See Resp't's Mem. at 4-7. Petitioner, however, filed this petition in August 1995, prior to the signing of the Act. The Second Circuit has held that provisions of the Act which do not specifically permit retroactive application should not apply to cases pending before the effective date of the Act. See Boria v. Keane, 90 F.3d 36, 38 (2d Cir. 1996) (holding that Section 104 of the Act does not apply to a petition filed prior to the Act's enactment); Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996) (holding that one-year time limit of Section 101 of the Act does not apply to petition filed prior to effective date of the Act); see also Grady v. Artuz, 931 F. Supp. 1048, 1054 n.1 (S.D.N.Y. 1996) (finding that the Act "is not retroactive apart from certain provisions involving capital cases where retroactivity is explicitly provided."); Trammell v. Coombe, 1996 U.S. Dist. LEXIS 18534, *4, No. 95 Civ. 9975 (DLC), 1996 WL 719384, at *1-2 (S.D.N.Y. Dec. 13, 1996) (holding that one-year time limitation provision of the Act does not bar petition filed before effective date of the Act); Delarosa v. Portuondo, 1996 U.S. Dist. LEXIS 9032, *4, No. 96 Civ. 1065 (JFK), 1996 WL 363106, at *1 (S.D.N.Y. July 1, 1996) ...