The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
The parties previously consented, pursuant to 28 U.S.C. § 636(c), to have a United States Magistrate Judge conduct all further proceedings in this matter, including entry of final judgment, and this matter was later reassigned to the undersigned. (Docket No. 27). Now pending before the Court is petitioner's motion to lift the stay that was initially entered on January 26, 2005 to enable petitioner to exhaust a claim under the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004).*fn1 (Docket No. 28). Also pending before the Court is petitioner's motion for the appointment of counsel. (Docket No. 26).
As noted, on January 26, 2005, the Court granted petitioner's request to stay the instant petition for habeas corpus relief so that he could exhaust his state court remedies with respect to a claim under Crawford. In granting the stay, the Court imposed two conditions: (1) that petitioner must initiate efforts in state court within 30 days of entry of the Order to exhaust his state court remedies; and (2) that petitioner must within 30 days after the conclusion of the state court proceedings return to this Court and file an affidavit reporting that the state court exhaustion proceedings had been concluded. The Court also directed that, because the petition then pending before the Court did not include the Crawford claim petition sought to add to his petition, petitioner must also file an amended petition including all the claims raised in the initial petition and the "new" now exhausted Crawford claim. (Docket No. 19).
On February 24, 2005, petitioner filed a motion to amend the petition seeking to add the unexhausted Crawford claim asserting that he did not need a stay or to exhaust the Crawford claim because said claim was procedurally barred. (Docket No. 20). The Court denied the motion on the basis that it was clear from petitioner's motion and supporting papers (Docket No. 20-22) that he had not exhausted the Crawford claim in state court as he was directed to do in the Order granting the stay. (Docket No. 24). The Court further directed that the stay entered previously would remain in place until petitioner notified the Court that he had exhausted his state court remedies, requested that the stay be vacated, and filed an amended petition that included the claims raised in the initial petition and the Crawford claim. (Id.)
Petitioner now moves to lift the stay on the basis that within 30 days of the filing of the instant motion he had exhausted his Crawford claim in state court. (Docket No. 24). Along with the motion to lift the stay, petitioner filed an amended petition in which he raised the claims raised in the initial petition and the Crawford claim he asserts he has now fully exhausted. (Docket No. 29, Amended Petition, Ground Six, p. 6(f)(1)).
Accordingly, petitioner's motion to lift the stay (Docket No. 28) is GRANTED. The stay Order of January 26, 2005 (Docket No. 19) is hereby rescinded. Respondent is directed to file and serve an answer and memorandum of law in response to the amended petition*fn2 within 30 days of receipt of this Order and take whatever action is necessary to ensure that the official state court records of petitioner's state court proceedings related to the Crawford claim are provided to the Court as soon as possible.*fn3
B. Motion for Appointment of Counsel
Petitioner has applied to the Court for appointment of counsel. Pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts, counsel may be appointed at any stage of the proceeding "if the interests of justice so require."
It is clear that prisoners have no constitutional right to counsel when bringing collateral attacks upon their convictions. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Murray v. Giarratano, 492 U.S. 1 (1989). Habeas petitioners who qualify under the Criminal Justice Act, however, are entitled to counsel if an evidentiary hearing is required, Rules Governing Section 2254 Cases in the United States District Courts, Rule 8(c), as are indigent petitioners who seek to vacate or set aside a sentence of death. 21 U.S.C. § 848(q)(1)(4)(B); McFarland v. Scott, 512 U.S. 849 (1994).
Appointment of counsel is within the judge's discretion, see In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The Court has reviewed the facts presented herein in light of the factors required by law. Specifically, there is no showing at this time that an evidentiary hearing is ...