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GREEN v. ARTUZ

January 6, 1998

RICHARD GREEN, Petitioner, against C. ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.


The opinion of the court was delivered by: BAER

 Hon. Harold Baer, Jr., District Judge:1

 Petitioner Richard Green ("Green"), pro se, petitions this court pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus to challenge the lawfulness of his incarceration. Petitioner also moves for discovery pursuant to Rule 6 of the Federal Rules Governing Section 2254 Cases. For the reasons set forth below, petitioner's motion for discovery is denied, petitioner's writ of habeas corpus is denied, and his petition is dismissed.

 I. Background

 This case arises out of a lengthy undercover "buy and bust" operation that occurred in March and April of 1989, in which Undercover Officer Richard Bert ("Officer Bert") purchased large quantities of "crack" cocaine from petitioner and co-defendant Kevin Rivers. Green was indicted by a Grand Jury for Criminal Sale of a Controlled Substance in the Second and Third Degrees on April 4, 1990, and after having been tried by a jury, petitioner was convicted of these counts. On May 29, 1990, he was sentenced to concurrent indeterminate terms of imprisonment of eight years of eight years to life on the Second Degree count, and eight to sixteen years on the Third Degree count. Green contends that he was framed because he refused to cooperate in the case against his co-defendant Kevin Rivers.

 On November 9, 1990, Green moved pro se for post-judgment relief pursuant to N.Y. CPL § 440.10, and on November 16, 1990, that motion was denied in all respects. The court denied petitioner's application for leave to appeal that denial on May 16, 1991. On January 17, 1992 Green filed a second pro se § 440.10 motion, claiming that the prosecutor had given no legal instructions to the Grand Jury, that statements of a non-testifying police officer should have been disclosed as Rosario material and that his attorney provided ineffective assistance of counsel. On April 7, 1992, petitioner's second § 440.10 motion was denied in all respects.

 On August 20, 1992, Green was granted permission to appeal from the denial of his second § 440.10 motion, which appeal was consolidated with his direct appeal. In his direct appeal, petitioner claimed the hearing court was in error in denying his motion to suppress identification testimony, and additionally asserted the same claims raised in his second § 440.10 motion. On December 15, 1992, the Appellate Division affirmed Green's conviction, People v. Green, 188 A.D.2d 385, 591 N.Y.S.2d 175 (1st Dep't 1992), and on February 12, 1993, the Court of Appeals denied his application for leave to appeal. People v. Green, 81 N.Y.2d 840, 611 N.E.2d 778, 595 N.Y.S.2d 739 (1993). *fn2" Petitioner filed an amended habeas petition in the instant matter on May 9, 1995, which petition was further amended on December 11, 1996 to add an additional ground for relief regarding the failure to disclose certain Rosario material.

 II. Discussion

 In his petition, Green claims that his conviction was obtained as a direct result of the following alleged constitutional and due process violations: (1) that the pre-trial identification procedures were unduly suggestive and as a result, the identification at trial was unreliable and denied petitioner a fair trial; (2) that he was denied effective assistance of counsel at trial and at the appellate stage; (3) that he was denied due process of law due to the lack of grand jury instructions; and (4) that he was denied Rosario material, and was thus denied due process of law. *fn3"

 A. Motion for Discovery

 Petitioner seeks discovery of certain materials he claims is necessary to this Court's decision on his habeas petition. Rule 6(a) of the Rules Governing Section 2254 Cases provides that a party is entitled to discovery in a habeas petition "if, and to the extent that, the judge in the exercise of his [or her] discretion and for good cause shown grants leave to do so, but not otherwise." As stated in the Advisory Committee Notes, "It is clear that there was no intention to extend to habeas corpus, as a matter of right, the broad discovery provisions...of the new [Federal Rules of Civil Procedure]." Rule 6, Advisory Committee Notes (quoting Harris v. Nelson, 394 U.S. 286, 22 L. Ed. 2d 281, 89 S. Ct. 1082 (1969)) (alterations in original).

 Green seeks a variety of material from the proceedings relating to his state court conviction, which he claims is relevant primarily to his ineffective assistance of counsel claim. Specifically, Green seeks transcripts of various calendar calls and arraignment proceedings relating to his appearances in state court in 1989, a copy of motions to dismiss the indictment filed by his counsel. See Aff. of Richard Green. He asserts that the requested records will show malfeasance by his trial counsel, as well as the police and the court in the state court proceedings. He contends that these documents will show that his first counsel withdrew his notice to testify before the Grand Jury without his consent, and that his subsequent counsel did not advise him that a hearing was being held on his motion to dismiss the indictment. However, generalized statements about the possible existence of material do not constitute "good cause." Rather a petitioner must produce specific evidence that supports his claim that the requested material exists. See Munoz v. Keane, 777 F. Supp. 282, 287 (S.D.N.Y. 1991), aff'd sub nom., Linares v. Senkowski, 964 F.2d 1295 (2d Cir. 1992). Here petitioner has failed to produce specific evidence that the requested material will show misconduct by counsel (and others) and thus has not shown good cause for this discovery. *fn4" Moreover, as discussed below, even if petitioner's contentions regarding counsel's conduct are true, this would not warrant habeas relief. Green's motion for discovery is therefore denied.

 B. Identification Testimony

 Prior to Green's arrest, he was picked out of photo array by Officer Bert, and was later picked out of a line-up by Officer Bert. Officer Bert subsequently identified petitioner at trial as one of the individuals who sold him crack cocaine. Petitioner claims that the procedures utilized by the state in procuring his identification by Officer Bert ...


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