United States District Court, S.D. New York
July 12, 2004.
KEITH DRAYTON, Petitioner,
WILLIAM MAZZUCA, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM and ORDER
Keith Drayton ("Drayton") has made an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Drayton contends that
his confinement by the state of New York is unlawful because: (a)
the jury's verdict was repugnant since he was convicted while a
co-defendant was not; (b) his trial counsel rendered ineffective
assistance to him; (c) the evidence presented at the trial was
insufficient to permit the jury to find him criminally culpable
for the charged crime; and (d) he was displayed to the jury in
handcuffs repeatedly and this prevented him from receiving a fair
Before the Court is a motion by Drayton 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 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
Drayton'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, Drayton's request for
appointment of counsel is denied.
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