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Jackson v. Conway

March 28, 2008

SHAWN A. JACKSON, PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

ORDER

BACKGROUND

Before the Court are several applications by pro se petitioner Shawn A. Jackson ("Jackson") for discovery and other relief, including the appointment of counsel, "Expert Consultation" for appointed counsel, an evidentiary hearing, and for permission to proceed in forma pauperis. See Docket Nos. 21, 22, 23 & 25. Respondent has opposed all of Jackson's requests. For the reasons set forth below, Jackson's applications are denied.

DISCUSSION

Discovery in Habeas Cases "[A] habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904; see also Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003); see also Harris v. Nelson, 394 U.S. 286, 295 (1969) (concluding that the "broad discovery provisions" of the Federal Rules of Civil Procedure did not apply in habeas proceedings). Rule 6(a) of the Rules Governing § 2254 Cases provides that a habeas petitioner is entitled to discovery "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." See Bracy, 520 U.S. at 904. Whether a petitioner has shown "good cause" depends on whether the petitioner has set forth specific allegations that provide "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 Harris v. Nelson, 394 U.S. at 299). "Generalized statements about the possible existence of discovery material are insufficient to constitute 'good cause.'" Gonzalez v. Bennett, 2001 WL 1537553, at *4 (S.D.N.Y. Nov. 30, 2001) (citing Green v. Artuz, 990 F. Supp. 267, 271 (1998)); accord, e.g., Richard v. Girdich, NO. 9:03CV0920 FJSGJD, 2007 WL 405863, at *1 (N.D.N.Y. Feb. 11, 2007). The court may, in its discretion, deny discovery where the petitioner has provided no specific evidence that the requested discovery would support his habeas corpus petition. Id. (citing Charles v. Artuz, 21 F. Supp.2d 168, 170 (E.D.N.Y.1988)); accord, e.g., Richard v. Girdich, 2007 WL 405863, at *1.

Jackson seeks discovery of the "(Monroe County Public Safety Laboratory Case Number 2907-00, Report Number 2, in addition to any and all other Reports generated after Report Number 3, (If None So State), also, Authorizing Agencies, Inventory, Requested Testing, Results and Correspondence with before [sic] said Agencies)." Petitioner's Affidavit in Support of Motion for Discovery at Page 2 (Docket No. 23). Jackson has filed several requests pursuant to New York's Freedom of Information Law ("F.O.I.L."), see id. at Page 3 (Docket No. 23), copies of which are attached to his motion for discovery. See id. The Monroe County Department of Communications repeatedly denied these requests, and Jackson's appeals of these denials, on the basis that "[a]ll requested information has been previously provided to [Jackson] by [his] trial attorney." E.g., Letter dated July 6, 2006, from John Staub, Monroe County Department of Communications to Petitioner. Thus, it appears that Jackson had access to the requested information at the time of trial. Jackson denies this, however, stating that such a representation that he was provided with the documents "is completely erroneous[.]" The Court has reviewed the state court records submitted by respondent, as well the records submitted by Jackson in connection with his pleadings, and there are numerous documents therein that relate to Monroe County Public Safety Laboratory Case Number 2907-00, Report Numbers 2 and 3. This appears to contradict Jackson's assertion that he has not been provided with documentation related to these laboratory reports. If there are additional documents that he is seeking, Jackson has not identified with sufficient specificity what they are, or how they would tend to exonerate him or otherwise support his petition for habeas corpus relief. Jackson has made nothing more than speculative assertions about the possible existence of discovery material which are insufficient to demonstrate the "good cause" required to order discovery in a habeas case.

Appointment of Counsel

Jackson also "requests appointment of the Federal Defenders Office in Buffalo, or, in the alternative, appointment of Private Counsel with Appropriate Experience in similar cases involving complex evidentiary concerns, to include, but not limited to [sic] Physical, Medical and Forensic Evidence. . . ." Petitioner's Affidavit in Support of Motion for Discovery, ¶2 (Docket No. 23). The Supreme Court has clearly held 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). 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 by the court "if the interests of justice so require."

Habeas petitioners who qualify under the Criminal Justice Act 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 for indigent litigants in civil cases, such as habeas petitioners, is within the judge's discretion. See Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986); see also In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The Court has reviewed Jackson's application for counsel in light of the factors required by law as set forth by the Second Circuit in Hodge. Specifically, as discussed below, Jackson has not made a showing at this time that an evidentiary hearing is required, nor is he seeking to vacate or set aside a sentence of death. In addition, Jackson has not provided the Court with any information which indicates that the interests of justice require the appointment of counsel at this time to allow him to present the claims raised in his habeas petition.

Evidentiary Hearing

Jackson requests that an evidentiary hearing be held in district court, stating that he is entitled to one because he did not have a "full and fair evidentiary hearing in a State Court, either at the time of trial or in a collateral proceeding." Petitioner's Affidavit in Support of Motion for Discovery, ¶3-4 ¶2 (Docket No. 23). He asserts that if he had been granted an evidentiary hearing in connection with his collateral C.P.L. § 440.10 motion before the trial court, he "may have been permitted to expand the record with regards to the requested information . . . ." The Court assumes Jackson is referring to the documents from the Monroe County Public Safety Laboratory about which he seeks discovery in the present action. As discussed above in this Decision and Order, Jackson has not established that he has been denied access to any documents to which he was entitled, or that the documents he claims he was denied actually exist in the possession of the prosecutor's office.

Rule 8 of the Section 2254 Rules provides as follows: If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require.

28 U.S.C. foll. § 2254, Rule 8(a). Prior to the enactment of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (the "AEDPA"), in 1996, federal district courts enjoyed broad discretion in determining when to hold evidentiary hearings in habeas corpus proceedings. See Jones v. Vacco, 126 F.3d 408, 417 n. 2 (2d Cir.1997). "In recent years, the Supreme Court and Congress have severely limited the situations in which a habeas court is required or even permitted to hold an evidentiary hearing to consider factual claims by a habeas petitioner." Nieblas v. Smith, 204 F.3d 29, 31 (2d Cir.1999) (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992) (requiring a hearing only when the petitioner can establish cause for his failure to develop an adequate factual record below and prejudice resulting from that failure); 28 U.S.C. ยง 2254(e)(2) (prohibiting a district court from holding an evidentiary hearing where the habeas applicant "failed to develop the factual basis of a claim in State ...


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