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Fulton v. Green

August 1, 2006

ALVIN FULTON, JR., PETITIONER,
v.
GARY GREEN, AS ACTING SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

MEMORANDUM AND ORDER

Before the Court is petitioner's motion (# 12) for discovery and appointment of counsel, his request (# 13) for documents from the Court and his request (# 17) for a discovery conference. For the reasons stated below, the motions are denied.

On March 28, 2002, petitioner alleges, a Monroe County, New York jury found him guilty of sexual conduct against a child in the first degree. (Pet. ¶ 3.) He states he was subsequently sentenced to 25 years' confinement. On June 15, 2005, petitioner filed a 56-page*fn1 verified petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence. (Id.) Petitioner alleges that his conviction was affirmed by the New York State Supreme Court, Appellate Division, Fourth Department, in a memorandum and order entered December 30, 2004, and the New York State Court of Appeals denied leave to appeal on March 29, 2005. (Pet. at 4-6.*fn2 ) As did his pro se brief at the Appellate Division, he raises fourteen points in his petition in this court and argues that he is entitled to reversal of his conviction.

In accordance with Western District of New York Local Rule of Civil Procedure 5.1(a), the Clerk assigned this case to the undersigned. Following the Court's denial of his motion to strike respondent's response, petitioner filed the discovery motion at issue here. In his motion, petitioner asks the Court for a copy of the docket sheet, a copy of "record page 101 of the Trial-Hearing Minutes," and copy of the "pro se 330.30 motion in its original legable [sic] form." (Fulton Aff. (Sep. 22, 2005) (# 12) at 3.) He requests three documents from respondent and proposes twenty-six admissions which he argues that the respondent should be directed to answer. Respondent opposes the motion in an Answering Affirmation, and petitioner has filed a Reply Response.

Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts, provides in pertinent part as follows:

(a) Leave of court required. A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery. If necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.

(b) Requesting discovery. A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents.

Rule 6, Section 2254 Rules (2004). The advisory committee notes from the 1976 adoption of the rule state that "any party may utilize the process of discovery available under Federal Rules of Civil Procedure (rules 26-37) if, and to the extent that, the judge allows." Section 2254 Rules, 1976 Advisory Committee Notes. The Committee also noted that, "[g]ranting discovery is left to the discretion of the court, discretion to be exercised where there is a showing of good cause why discovery should be allowed." Id.

Before addressing the merits of petitioner's motion, the Court considers his application that the undersigned recuse himself. In his affidavit in support of the motion, petitioner states the following:

Petitioner also requests a copy of the Order reassigning this case to Judge Charles J. Siragusa and removing [the] case from Judge John T. Elfvin.

The history of these proceedings [sic] no doubt Hon. Charles J. Siragusa to be bias[ed] twards [sic] petitioner and, partial towards the Monroe County District Attorney's Office; The [sic] Office in which Siragusa himself served as First Assistant District Attorney to Howard R. Relin Before [sic] Siragusa was appointed to the Federal bench.

Siragusa has proven to be incapable of following the law to its letter, and abiding in the spirit thereof in fairness and equity which results from his predisposition to thwart proceedings so as to favor the prosecution at all cost, and conceal due process violations of law, as fully demonstrated in petition for habeas writ; Thus [sic] this matter must remain [sic] before Hon. John T. Elfvin as a matter of ethics in the interest of justice (Petitioner is certain the Second Circuit will concur)[.] Siragusa was silent on the issue of exhaustion raised in motion to strike. (Fulton Aff. at 3.) First, this case has never been assigned to Judge Elfvin. Judge Elfvin signed the initial order in this case as the duty judge for the month, but the case has been, and remains, assigned to the undersigned. Second, petitioner has no basis for the conclusions he makes. This Court has issued but one order, denying petitioner's motion to strike respondent's answer as untimely, on the basis that the response was timely served according to Rule 5(b)(2)(B) of the Federal Rules of Civil Procedure. The accusations against petitioner by the complainant in the State court case did not take place until April 9, 2001, (Pet. Ex. A.), nine years after the undersigned left the Monroe County District Attorney's Office upon election to the State Supreme Court. If petitioner is requesting the undersigned to recuse himself, that request is denied. Recusal is a matter of discretion and required only when, "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned." United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992); Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987) (same). Knowledge gained from the judge's discharge of his judicial function is not a ground for disqualification under 28 U.S.C. § 455(b)(1). Katsaros v. Cody, 744 F.2d 270, 283 (2d Cir. 1984).

Omega Eng'r, Inc. v. Omega, S.A., 432 F.3d 437, 44 (2d Cir. 2005). Here, petitioner has set forth no facts requiring recusal, nor is the Court aware of any.

Turning to petitioner's discovery motion, the Court finds that it contains no basis for ordering discovery in this case. Petitioner's only justification for discovery is that "[t]he request for admissions and production of documents are [sic] very necessary.." (Fulton Aff. at 4.) As the Supreme Court observed in Bracy v. Gramley, 520 U.S. 899 (1997), "Before addressing whether petitioner is entitled to discovery under this Rule to support his judicial-bias claim, we must first identify the 'essential elements' of that claim." Bracy, 520 U.S. at 904. Here, the essential elements of petitioner's claim are that he was convicted through the use of ...


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