The opinion of the court was delivered by: David N. Hurd United States District Judge
David Reynolds. ("petitioner" or "Reynolds"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 8, 2005. In the petition, he challenged a January 26, 1998, judgment of conviction for second degree assault and first degree promoting prison contraband, following a jury trial,. SeeDkt. No. 1. Reynolds argued that trial counsel was ineffective because he gave misleading advice regarding whether petitioner would be treated as a persistent felony offender if convicted following a trial. Dkt. No. 1 at 6, Ground One. The petition was referred to Magistrate Judge David R. Homer who issued a Report-Recommendation and Order on January 12, 2007. In the Report-Recommendation, the Magistrate Judge recommended that the petition be denied. Dkt. No. 15. In a Decision and Order filed May 2, 2007, the Report and Recommendation was adopted. The petition was denied and dismissed. Dkt. Nos. 18-19. In a Mandate issued on September 28, 2007, the Second Circuit Court of Appeals denied petitioner's motion for a certificate of appealability, finding that he failed to make a "substantial showing of the denial of a constitutional right." Dkt. No. 26 (quoting 28 U.S.C. § 2253(c)).
Presently before the Court is petitioner's motion, pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, to reverse the denial of his petition for a writ of habeas corpus. Dkt. No. 28. Petitioner has also filed a motion for leave to proceed in forma pauperis, a motion for the appointment of counsel, and a motion for an evidentiary hearing. Dkt Nos. 29-30. For the reasons that follow, the Court will grant the motion to proceed in forma pauperis (Dkt. No. 29) solely for the filing of the motion. For the reasons that follow, all of petitioner's other motions will be denied with prejudice.*fn1
I. Petitioner's Request that a Three-Judge Panel Review his Motion
Petitioner has requested that his Rule 60(b) motion be heard by a three-judge panel. See Dkt. No. 28 at 1 ("Notice of Motion Pursuant to 28 U.S. Federal Rules of Civil Procedure 60(b)(6)"). Petitioner's request will be denied because a three-judge panel is not warranted in this case. See 28 U.S.C. § 2284(a)("A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body."); Loeber v. Spargo, No. 04-CV-1193, 2008 WL 111172, at *2 (N.D.N.Y. Jan. 8, 2008)(Kahn, J.)("When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determine whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute.")(quoting Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962)(discussing pre-1976 version of §2284)).
II. Motions for an Evidentiary Hearing and Appointment of Counsel
Petitioner has moved for an evidentiary hearing and for the appointment of counsel. Dkt. No. 30. He argues that there are certain legal materials no longer available to him in prison; that the claims in his motion are complex; and that he suffers from mental health issues. Id. at 6-7. Petitioner argues that this Court previously erroneously denied his request for counsel, which is "one of the main reasons why the denial of petitioner's Writ of Habeas Corpus cannot stand[.]" Id. at 1. Petitioner states that he should be permitted counsel, and an evidentiary hearing, in order to present evidence relating to a letter written by Judge Jerome J. Richards, a St. Lawrence County Court judge who prosecuted petitioner. In the letter dated January 26, 2009, Judge Richards recommended to the New York State Division of Parole that petitioner be paroled. See Dkt. No. 28-1, Ex. H at 1.
There is no constitutional right to representation by counsel in habeas corpus proceedings.See Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993);Urrutia v. Green, No. 05-CV-6153, 2007 WL 1114103, at *1 (W.D.N.Y. Apr. 12, 2007)(citing McClesky v. Zant, 499 U.S. 467, 495 (1991)); Soto v. Walker, No. 00-CV-0197, 2005 WL 2260340, at *4 (N.D.N.Y. Sept. 15, 2005)(McAvoy, S.J.). A court may, however, in its discretion, appoint counsel where "the interests of justice so require[.]" See18 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. See Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986). Counsel must be appointed when an evidentiary hearing is necessary in order to resolve the issues raised in a habeas petition. SeeRule 8(c), Rules Governing Section 2254 Cases in the United States District Courts; Chandler v. Girdich, No. 04-CV-432, 2007 WL 1101106, at *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 habeas petitioner's request for counsel should ordinarily be denied. SeeBrito v. Burge, No. 04 Civ. 1815, 2005 WL 1837954, at *1 (S.D.N.Y. Aug. 3, 2005)(citingCoita v. Leonardo, No. 96-CV-1044, 1998 WL 187416, at *1 (N.D.N.Y. Apr. 14, 1998)(Pooler, J)).
Petitioner's claims in his Rule 60(b) motion may be fairly heard based upon his written submissions which include the letter from Judge Richards. Thus, an evidentiary hearing is not necessary, and the appointment of counsel on behalf of petitioner is unwarranted. Petitioner's motions for appointment of counsel and for an evidentiary hearing will therefore be denied.
Rule 60(b) of the Federal Rules of Civil Procedure provides that a district court, "[o]n motion and upon such terms as are just,... may relieve a party or a party's legal representative from a final judgment, order, or proceeding" for one of several enumerated grounds, including fraud, mistake, and newly discovered evidence. Fed. R. Civ. P. 60(b). Subsections one through five set forth specific grounds for relief. Id. at 60(b)(1)-(5). Under subsection six, relief may be granted "for any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6). The Supreme Court has interpreted subsection six as requiring a showing of "extraordinary circumstances" to "justify[ ] the reopening of a final judgment." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) ("[Rule 60(b)(6)] should only be applied in extraordinary circumstances").
A Rule 60(b) motion may be used to attack "the integrity of the previous habeas proceeding," but it may not be used as a vehicle to attack "the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004); see Gonzalez, 545 U.S. at 529 (a Rule 60(b) motion may be appropriate under 28 U.S.C. § 2254 if the motion "attacks not the substance of the federal court's resolution of a claim on the merits, but some defect*fn2 in the integrity of the federal habeas proceedings."). Rule 60(b) motions also may not be used to circumvent the AEDPA's restriction on the filing of second or successive habeas petitions. 28 U.S.C. § 2244(b)(1)-(3).*fn3 Gonzalez, 545 U.S. at 531 ("A habeas petitioner's filing that seeks vindication" of a previously denied claim is, "if not in substance a 'habeas corpus application,' at least similar enough that failing to subject it to the same requirements would be inconsistent with the [AEDPA]."). A Rule 60(b) motion should be treated as a second or successive habeas petition under the AEDPA when it seeks to add a new ground for relief... [or] attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.
Gonzalez, 545 U.S. at 532 (footnote omitted)(emphasis in original). A claim has been resolved "on the merits" when the district court has made "a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at 532 n. 4. However, a petitioner is not making a habeas claim if he "merely asserts that a previous ruling which precluded a merits determination was in error -- for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." Id. If a Rule 60(b) motion simply attacks the petitioner's underlying conviction or sentence, a district court may treat the motion as a second or successive habeas petition and transfer it to the appropriate Court of Appeals for possible certification, or deny the portion of the motion attacking the underlying conviction " 'as beyond the scope of Rule 60(b).' " Harris, 367 F.3d at 82 (quoting Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002)).
In this case, petitioner's motion is brought pursuant to Rule 60(b)(6). Motions brought under subsection six must be filed "within a reasonable time." Fed R. Civ. P. 60(b). To determine whether a 60(b)(6) motion is timely, a court must "look at the particular circumstances of each case and 'balance the interest in finality with the reasons for delay.' " Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 190 n. 8 (2d Cir. ...