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Gonzalez v. Lempke

January 15, 2010

RAYOND GONZALEZ, PETITIONER,
v.
JOHN B. LEMPKE, RESPONDENT.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This state habeas corpus petition is before the Court on Respondent's motion (Docket No. 7) to dismiss and motion (Docket No. 11) for an extension of time to file an answer, Petitioner's motion (Docket No. 14) to appoint counsel and his motion (Docket No. 15) for an extension of time to file a response to Respondent's motion to dismiss. For the reasons stated below, Petitioner's motion for the appointment of counsel is denied, his motion for an extension of time to respond to the motion to dismiss is granted, Respondent's motion for an extension of time is granted, and the Court reserves decision on Respondent's motion to dismiss.

BACKGROUND

Inasmuch as petitioner is proceeding pro se, this Court will construe the petition liberally. See Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998). Petitioner filed with this Court on August 20, 2009, seeking review of a judgment of conviction entered in New York State County Court, Wyoming County, on May 12, 2005, convicting him of assault in the second degree under indictment 5198 following a jury trial. At issue is whether he was denied a right to appeal his conviction to the New York State Supreme Court, Appellate Division, Fourth Judicial Department.*fn1 Included as an exhibit attached to the petition is a letter from Stuart M. Cohen, Clerk of the Court, New York Court of Appeals, in which he writes, inter alia, the following:

I have inquired of the office of the Clerk of the Appellate Division, Fourth Department about the status of your case, and I have been advised of the following: It appears that, after you failed to meet the deadline set by the Appellate Division for filing the necessary papers on your appeal, that your appeal was dismissed by virtue of the provision in an order of the Appellate Division that, upon failure to comply with the filing deadline, your appeal would be deemed dismissed without further order.

It further appears that you moved in that court to vacate the dismissal of your appeal and that, in an order dated May 14, 2008, the Appellate Division denied the motion with leave to renew upon a showing of sufficient facts to demonstrate a meritorious appeal. (Pet. Ex. F, Docket No. 1-3.)

On August 31, 2009, the Court granted Petitioner's application to proceed in forma pauperis, and directed Respondent to file and serve an answer by October 13, 2009, and granting Respondent leave to file a motion to dismiss the petition within thirty days of the date of the Order. (Docket No. 3, at 2.) On November 13, 2009, Respondent filed his motion to dismiss. (Docket No. 7.) On November 24, 2009, the Court issued a Motion Scheduling Order directing Petitioner to respond to the motion to dismiss by December 18, 2009. On November 27, 2009, Respondent filed his motion to extend the time to answer until after the Court rendered a decision on his motion to dismiss. (Docket No. 11.) On December 29, 2009, Petitioner filed his motions for the appointment of counsel (Docket No. 15) and to extend his time to respond (Docket No. 15).

STANDARDS OF LAW

Appointment of Counsel

There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).

Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1986). The factors to be considered in deciding whether to assign counsel include the following:

1. Whether the indigent's claims seem likely to be of substance;

2. Whether the indigent is able to investigate the crucial facts ...


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