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Heath v. Artus

July 7, 2009

JAMES CHAD HEATH, PETITIONER,
v.
DALE ARTUS, RESPONDENT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

The Clerk of the Court has sent Petitioner James Chad Heath's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, his motion for leave to proceed in forma pauperis, his motion to appoint counsel, and his motion for enlargement of the page limit for a memorandum of law to the Court for its review. See Dkt. Nos. 1-4.*fn1

II. DISCUSSION

A. Application to Proceed in Forma Pauperis

Petitioner has submitted an in forma pauperis application to proceed without prepayment of the filing fee. See Dkt. No. 2. However, the appropriate prison official has neither certified nor signed the application with regard to the balance, and average balance, in any account in Petitioner's name at the facility. See id. at 2; see also Rule 3(a)(2) of the Rules Governing Section 2254 Cases in the United States District Courts (requiring petitioners who file in forma pauperis applications to include a "certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution"). Therefore, the Court denies without prejudice Petitioner's application to proceed in forma pauperis.

B. Motion for Appointment of Counsel

Petitioner has moved for the appointment of counsel. See Dkt. No 3. There is no constitutional right to representation by counsel in habeas corpus proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (citation omitted); Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (quotation and other citation omitted); Soto v. Walker, No. 00-CV-0197, 2005 WL 2260340, *4 (N.D.N.Y. Sept. 15, 2005) (citations omitted). A court may, in its discretion, appoint counsel where "the interests of justice so require[.]" 18 U.S.C. § 3006A(a)(2)(B). In determining whether to appoint counsel, a habeas court should "consider the petitioner's likelihood of success on the merits of his petition, the complexity of legal issues raised by such application and the petitioner's ability to investigate and present his case to the federal habeas court." Soto, 2005 WL 2260340, at *4 (citation omitted); see Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986). A court must appoint counsel when an evidentiary hearing is necessary in order to resolve the issues raised in a habeas petition. See Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts; Chandler v. Girdich, No. 04-CV-432, 2007 WL 1101106, *1 (W.D.N.Y. Apr. 12, 2007). When an evidentiary hearing is not required, and the petitioner's claims may "fairly be heard on written submissions," a court should ordinarily deny a habeas petitioner's request for counsel. Brito v. Burge, No. 04 Civ. 1815, 2005 WL 1837954, *1 (S.D.N.Y. Aug. 3, 2005) (citing Coita, 1998 WL 187416, at *1).

Based upon its review of the petition, the Court finds that appointment of counsel on behalf of Petitioner is, at this time, unwarranted. Thus, the Court denies Petitioner's motion for the appointment of counsel without prejudice to renew in the event that this Court finds that an evidentiary hearing is necessary.

C. Motion Seeking Enlargement of the Page Limit for a Memorandum of Law

Petitioner has filed a motion seeking enlargement of the page limit for his memorandum of law to eighty (80) pages. See Dkt. No. 4 at 2. The Court denies Petitioner's request. The Court advises Petitioner that any memorandum of law he files must not exceed twenty-five (25) pages in length. See Local Rule 7.1(a)(1); Rule 72.4 (a).

D. The Petition

Petitioner challenges an October 29, 2003 judgment of conviction entered in Tompkins County Supreme Court. See Dkt. No. 1 at ¶¶ 1-2. Petitioner states that a jury convicted him of second degree murder, first degree manslaughter, attempted second degree kidnapping and attempted first degree robbery and that the trial court sentenced him to serve an aggregate term of twenty-five (25) years to life in prison. See id. at ¶¶ 3-6. Petitioner further states that the Appellate Division, Third Department, confirmed his conviction on March 13, 2008, and that the New York Court of Appeals denied him leave to appeal on July 21, 2008. See id. at ¶ 8. Finally, Petitioner asserts that he has "exhaust[ed] all of the claims in the State Courts." See id. at ¶ 8(j).

In his petition, Petitioner alleges the following grounds for relief: (1) he was not present for a material stage of the trial; (2) the trial court committed reversible error when it refused to permit him to present psychiatric evidence at trial; (3) the trial court improperly permitted a prosecution witness to testify as to the "ultimate issue" at trial; (4) the prosecutor knowingly introduced false testimony at trial; (5) the trial court erred when it declared a defense witness unavailable at trial and when it did not grant the defense a missing witness instruction; (6) the trial court erred when it assured Petitioner that all sidebar conferences would be transcribed if he waived his right to be present during them; (7) the trial court ...


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