United States District Court, S.D. New York
October 4, 2004.
EDGARDO CINTRON, Petitioner,
EDWARD DONNELLY, SUPERINTENDENT WENDE CORRECTIONAL FACILITY, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM AND ORDER
Edgardo Cintron has made an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Cintron contends that his
confinement by the state of New York is unlawful because, inter
alia, his right to due process of law was violated when the
trial court responded to an inquiry from the jury without
consulting Cintron's counsel and also failed to permit the jury
to visit the scene of the crime. Cintron also contends that he
was denied due process of law based upon statements made by the
prosecutor during his final arguments to the jury. Moreover, the
petitioner maintains that his conviction rests upon perjurious
testimony, which the prosecutor knew or should have known was
Before the Court is a motion by Cintron that counsel be
appointed to assist him in obtaining the relief he seeks through
the instant application for a writ of habeas corpus. The Court
has considered Cintron's 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
Cintron'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, Cintron's request
for appointment of counsel is denied.
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