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BASTIEN v. WILLIAM

United States District Court, S.D. New York


January 15, 2004.

DONALD BASTIEN, Petitioner -against- PHILLIPS WILLIAM, SUPERINTENDENT, Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM and ORDER

Donald Bastien ("Bastien") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Bastien maintains that his confinement by the state of New York is unlawful because at the time that he tendered a plea of guilty to the criminal charges that occasioned his present period of incarceration, he did so unknowingly and involuntarily due to mental illness. Furthermore, Bastien contends that the trial court erred when it failed to grant his motion to suppress evidence of a statement Bastien made to the prosecution, because the statement was obtained after Bastien invoked his right to counsel. Moreover, Bastien alleges that the sentence imposed upon him, following his tender of a plea of guilty, was excessive.

Before the Court is a motion by Bastien that counsel be appointed to assist him in obtaining the relief he seeks through his application for a writ of habeas corpus. The Court has considered the motion; it is addressed below.

  In a habeas corpus proceeding, the appointment of counsel is discretionary. See Mitchell v. Breslin, No. 01 Civ. 5520, 2002 WL 31255076, at *1 (S.D.N.Y. Oct. 8, 2002); Coita v. Leonardo, No. 96 Civ. 1044, 1998 WL 187416, at *1 (N.D.N.Y. April 14, 1998). Among the Page 2 factors which a court may consider in determining whether to grant a habeas corpus petitioner's application for appointment of counsel is whether an evidentiary hearing should be held in connection with the petition. Where no hearing is to be held, the appointment of counsel is not warranted. See U.S. ex rel Cadogan v. LaVallee, 502 F.2d 824, 826 (2d Cir. 1974); see also Adams v. Greiner, No. 97 Civ. 3180, 1997 WL 266984 (S.D.N.Y. May 20, 1997).

  Based upon a review of the petition and the answer submitted on behalf of the respondent, the Court has determined that a hearing does not appear to be necessary. It appears to the Court that Bastien's application for a writ of habeas corpus may be addressed by analyzing the written submissions made by the parties as well as the record generated during the relevant state court judicial proceedings. Accordingly, Bastien's request for appointment of counsel is denied.

  SO ORDERED. Page 1

20040115

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