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DRAYTON v. MAZZUCA

United States District Court, S.D. New York


July 12, 2004.

KEITH DRAYTON, Petitioner,
v.
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. ยง 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 trial.

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.

  SO ORDERED.

20040712

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