The opinion of the court was delivered by: ROBERT PATTERSON JR., Senior District Judge
I. Motion for DNA Testing
Pro se Petitioner Elvin Lebron has moved, pursuant to the
Innocence Protection Act of 2004, 18 U.S.C. § 3600, to have DNA
testing of his person on the grounds he is actually innocent of
the murder charge on which he pled guilty and was convicted in
Supreme Court, New York County, eleven years ago. Section 3600 of
Title 18 applies only to persons "who are under sentence of
imprisonment or death pursuant to a conviction for a Federal
offense." 18 U.S.C. § 3600(a). On April 14, 2005, the Petitioner
was advised by the Appellate Division (First Department) that his
demand for DNA testing can be sought in state proceedings by way
of Criminal Procedure Law 440. See Lebron v. Smith,
792 N.Y.S.2d 329, 330 (1st Dep't 2005).
II. Motion for Physical and Mental Examinations
Petitioner also has moved for compulsory physical and mental
examinations of himself and several third parties, Robert
Rodriguez, Vincent Perez, Xiomara Almantes, and David Taveras.
Specifically, Petitioner asks that Dr. Lawrence A. Farwell of
Herman Brain Research Laboratory Incorporated, 108 West Palm
Drive, Fairfield, Iowa, and other specified professionals,
conduct brain fingerprinting, brain imaging and near infrared light emitter and polygraph tests on his person and the
other named persons to determine "the exact nature and extent of
their involvement, if any in the crime."
In a habeas corpus proceeding, a judge may only permit
discovery of this nature "for good cause shown." Bracy v.
Gramley, 520 U.S. 899, 904 (1997) (citing Rule 6(a) of the Rules
Governing § 2254, which provides "[a] party shall be entitled to
invoke the processes of discovery available under the Federal
Rules of Civil Procedure if, and to the extent that, the judge in
the exercise of his discretion and for good cause shown grants
leave to do so, but not otherwise"). To show "good cause," a
petitioner must provide an affidavit setting forth specific
allegations that provide the court with "reason to believe that
the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief." Bracy,
520 U.S. at 908-09 (quoting from Harris v. Nelson, 394 U.S. 286,
299 (1969)). Generalized statements about the possible existence
of discovery material are insufficient. When the petitioner
provides no specific evidence that the requested material would
support his or her habeas corpus petition, courts will exercise
their discretion to deny a discovery request. Gonzalez v.
Bennett, 2001 U.S. Dist. LEXIS 19798 at *11-12 (S.D.N.Y. Nov.
30, 2001); Charles v. Artuz, 21 F. Supp. 2d 168, 170 (E.D.N.Y.
1988); Hirschfeld v. Comm'r of Div. of Parole, 215 F.R.D. 464,
465 (S.D.N.Y. 2003).
In this proceeding, Petitioner's unexhausted habeas corpus
claims are that he was arrested without probable cause and that
his plea of guilty was coerced. To obtain the discovery he seeks,
Petitioner must demonstrate that his development of these claims
will be assisted by any of the tests he is seeking and,
particularly, why physical or mental tests taken eleven years
after his guilty plea would be indicative of the physical or
mental state of the persons at the time of his arrest and
conviction. Since the Petitioner's motion papers do not show good cause for
the ordering of any of the tests requested, the motion is denied
without prejudice to his renewing the motion upon a showing that
conducting such tests on Petitioner or any of the other named
persons would assist Petitioner in the development of his claims.
III. Motion for an Order to Allow Correspondence with
Petitioner also moves for an order allowing him to correspond
with his co-defendant who is incarcerated in a separate facility.
He claims that correction officials are misusing prison
regulations about inmate correspondence to prevent him from
gathering information concerning his case and therefore impairing
his right to meaningful access to the court. He also claims that
prison officials have not observed the proper appeals process to
allow him to challenge their actions. (Aff'm in Supp. of Motion
at 2.) Prison officials are not parties to this proceeding.
If Petitioner believes his co-defendant has information or
materials germane to his claims in this proceeding, he can use
the discovery process in the Federal Rules of Civil Procedure
(Rules 26-38) to obtain that information or the materials he is
If Petitioner believes his constitutional right to access to
the courts is being impeded by prison officials or prison
regulations, his proper avenue for relief is to commence an
action against those officials pursuant to 42 U.S.C. § 1983.
Petitioner's motion for an order against prison officials in
this action is denied without prejudice to his bringing a § 1983
action against named prison officials. IT IS SO ORDERED.
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