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Richard v. Girdich


May 2, 2007


The opinion of the court was delivered by: Gustave J. DI Bianco, United States Magistrate Judge


I. Introduction

By Decision and Order entered February 1, 2007 ("February Order"), I denied petitioner's motions (1) seeking discovery in this habeas corpus proceeding;*fn1 (2) requesting expansion of the record;*fn2 and (3) for sanctions.*fn3 Dkt. No. 53.

II. Motion for Reconsideration

Presently before the court is petitioner's motion for reconsideration of the February Order.*fn4 Dkt. No. 54. In support of his motion for reconsideration, petitioner claims that the court committed "clear error" in denying his motions for discovery, expansion of the record and sanctions. Id. at 3. Respondent opposes this motion on the ground that petitioner has failed to meet the "high standard" for reconsideration. (Dkt. No. 55).

A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.)(citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)).

The standard for granting a motion for reconsideration is strict. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. Furthermore, a motion for reconsideration is not to be used "for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple'...." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)(citations omitted). I will consider each motion separately.

A. Discovery

In support of his claim that the court should reconsider the denial of his motion for discovery, petitioner argues that Assistant Attorney General (AAG) McCartin has been "responding to pleadings," and that it was logical for petitioner to serve interrogatories on the AAG. (Dkt. No. 54 at 3). Petitioner states that the rules of discovery in civil cases are "vague" and he should be allowed a chance to amend.*fn5 Id. at 5. Petitioner further states that he proved in his discovery motion that the documents he sought existed. Id. Petitioner states that the court failed to "properly compare" his motion for discovery with the record of his post-conviction motions filed in state court. Id. at 6. Petitioner also states that the court ignored his request for DNA discovery. Id. at 7.

As noted, petitioner attaches 84 pages of "exhibits" to this motion for reconsideration. (Dkt. No. 54-2). Presumably, these are the post-conviction motions Petitioner wishes the court to "properly compare" to his discovery motion. The court would first point out that unlike the usual civil litigant, a habeas petitioner is not automatically entitled to discovery. Gonzalez v. Bennett, 2001 U.S. Dist. LEXIS 19798, *11 (S.D.N.Y. Nov. 30, 2001). The petitioner must make a motion for discovery, and the district court judge must determine whether petitioner has shown "good cause." 28 U.S.C. fol. § 2254, Rule 6.*fn6 Although petitioner asks the court to "compare" documents, the court cannot be expected to go from document to document, and search for the relevant parts, in an attempt to determine the totality of petitioner's arguments. Petitioner must set forth his entire legal argument within the confines of his motion.

In his motion for reconsideration, petitioner asserts that the Court ignored his request for DNA discovery. I did not specifically address each individual item in Petitioner's discovery request in the February Order because the interrogatories were improper in toto as addressed to AAG McCartin. (Dkt. No. 54 at 3).

Petitioner addresses issues already decided by the court. Petitioner does not establish that good cause exists for the requested discovery; rather, he states his confusion over the requirements for making such a motion and requests that the court re-read his motion. (Dkt. No. 54 at 3, 6). Therefore, his request for reconsideration of that part of the February Order denying his motion for discovery is denied. I do note, however, that if I determine upon a review of the merits of petitioner's application that discovery is necessary, I may reconsider the issue at that time.

B. Expansion of the Record

In support of his claim that the court should reconsider the denial of his motion to expand the record, petitioner states that the court improperly adopted Respondent's allegations that the documents he intended to submit to the court were not a part of the state court record. Id. at 8. Petitioner states that the court's ruling on his motion to expand the record is unfounded and without proper review. Id.

Once again, petitioner seeks to relitigate issues already decided by the court. Rule 7 of the Rules following section 2254 provide for "Expanding the Record." 28 U.S.C. fol. § 2254, Rule 7. This rule provides that "[i]f the petition is not dismissed, the judge may direct the parties to expand the record . . . ." Id. Expansion of the record is generally considered if the petition is not dismissed on the pleadings, and the purpose is to dispose of some habeas petitions without the time an expense required for an evidentiary hearing. Id. Advisory Committee Notes.

The Second Circuit has held that where specific allegation before the court show that, if the facts are more fully developed, the petitioner may be entitled to relief, the court must provide the "necessary facilities and procedures for an adequate inquiry." Drake v. Portuondo, 321 F.3d 338, 345-46 (2d Cir. 2003)(citing inter alia Bracy v. Gramley, 520 U.S. 899, 908-909 (1997))(internal quotation marks omitted). As stated above, if when the court is evaluating this petition, it determines that petitioner would be entitled to relief if the facts were developed further, the court may reconsider expanding the record.*fn7

C. Sanctions

In support of his claim that the court should reconsider the denial of his motion for sanctions, Petitioner states that the court should "reread" his "sanction motion carefully." Id. Petitioner states that, although the court has discretion to deny his motion and postpone its review of the state court record, "the better course in this situation" is for the court to review the record immediately. Id. at 9. Petitioner then cites Local Rule 72.4(d)*fn8 and states that the court must sanction Respondent because he did not submit state court records in accordance with the Local Rule. Id. at 15.

Contrary to Petitioner's assertions, a "violation" of Local Rule 72.4(d) does not require the court to impose sanctions on the respondent. Local Rule 72.4(d) sets forth procedures to be followed "[i]f" state court records are to be submitted with the respondent's answer. The Rules Following Section 2254 Cases indicate that the respondent must attach to his answer records that "respondent considers relevant." 28 U.S.C. fol. § 2254, Rule 5(a). Rule 5 does not mandate that every record in petitioner's state court case be filed if it is not "relevant" to petitioner's claims. If petitioner believes that all the appropriate records have not been filed, he may file the documents in support of his decision or he may ask the court to order respondent to file state court papers that are known to exist and that were part of the state court record.*fn9 Thus, if petitioner believes that respondent has not filed the appropriate records, petitioner may submit those records, together with an explanation of why the records are relevant to the issues.

III. Conclusion

Because Petitioner has not established any of the above-cited factors relative to this motion for reconsideration, the motion (Dkt. No. 54) is DENIED.

WHEREFORE, it is hereby

ORDERED, that Petitioner's motion for reconsideration (Dkt. No. 54) is DENIED for the reasons set forth above, and it is further

ORDERED, that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules.

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