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CINTRON v. DONNELLY

United States District Court, S.D. New York


October 4, 2004.

EDGARDO CINTRON, Petitioner,
v.
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. ยง 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 perjurious.

  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.

  SO ORDERED.

20041004

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