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Yates v. Hulihan

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


September 30, 2010

PHILLIP G. YATES, PETITIONER,
v.
WILLIAM H. HULIHAN, SUPERINTENDENT, MID-STATE CORRECTIONAL FACILITY, RESPONDENT.

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

DECISION AND ORDER

I. Introduction

Pro se petitioner Phillip G. Yates ("Yates" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1). Yates is currently incarcerated under an April 3, 2007, judgment of the Yates County Court of the State of New York. By that judgment, petitioner was convicted, upon his guilty plea, of two counts of Driving While Intoxicated (New York Vehicle & Traffic Law ("V.T.L.") § 1192.3(3)) and one count of Aggravated Unlicensed Operation of a Vehicle in the First Degree (V.T.L. § 511.3(3)). On each conviction, Yates was sentenced to an indeterminate prison term of one and one-third to four years.

Yates raises the following grounds for habeas relief: (1) denial of the effective assistance of counsel on the ground that counsel failed to investigate petitioner's defenses (i.e., that the prosecutor had no Breathalyzer results to prove petitioner's intoxication, and that petitioner was suffering from a mental disease or defect); (2) involuntariness of guilty plea as a result of coercion by trial and the fact that petitioner was suffering from a mental disease or defect when he pleaded guilty; and (3) the County Court lacked subject matter jurisdiction and jurisdiction over petitioner because petitioner was sentenced in the absence of a certificate of conviction for his prior driving while intoxicated conviction.

Respondent has answered the petition. (Docket No 8). The matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1). (Docket No. 22).

Presently before the Court are Yates' motion for an extension of time to file a reply (Docket No. 15); motion to appoint counsel (Docket No. 17); and motion to supplement his pleadings (Docket No. 18). Also before the Court is respondent's motion to strike petitioner's sur-reply (Docket No. 21).

The motion for an extension of time to file a reply (Docket No. 15), which was unopposed by respondent, is granted, and Yates' reply is deemed timely filed.

For the reasons that follow, the motion to appoint counsel (Docket No. 17) is denied without prejudice. The motion to have the Court exercise supplemental jurisdiction (i.e., the motion to supplement pleadings, Docket No. 18), which was opposed by respondent, is denied. The motion to strike petitioner's sur-reply (Docket No. 21) is granted.

II. Motion for Appointment of Counsel

Yates asserts that he is a "Pro-se, indigent non-prisoner litigant and as such is overwhelemed [sic], and with injury, inficted [sic] with being diagnosis [sic] disabled." Motion to Appoint Counsel, para. 2. He also states that he has sought pro bono legal assistance from a legal services bureau and two law firms, but his requests were denied. Id., para. 4.

There is no absolute right to assistance of counsel in the preparation of a habeas petition. See McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (noting that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 which prohibits, with certain exceptions, the retroactive application of new law to claims raised in federal habeas, does not "imply that there is a constitutional right to counsel in federal habeas corpus") (citing Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (stating that he right to appointed counsel extends to the first appeal of right, and no further, and declining to hold that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions)); accord, e.g., Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir.2004).

The Second Circuit, in Hodge v. Police Officers, 802 F.2d 58 (2d Cir.1986), held that while district courts have discretion under 28 U.S.C. § 1915(d) to appoint for indigents in civil cases, such as petitions for a writ of habeas corpus under 28 U.S.C. § 2254, such discretion is not unlimited and is reviewed for abuse of discretion. Hodge, 802 F.2d at 60. With regard to appointment of pro bono counsel, the Second Circuit has explained, When deciding whether to assign counsel to an indigent civil litigant under 28 U.S.C. § 1915(e)(1), we look first to the "likelihood of merit" of the underlying dispute. Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997); see also Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir.1989) (per curiam). Thus, even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the indigent's claim are thin and his chances of prevailing are therefore poor. See Cooper, 877 F.2d at 172. Only after an initial finding that a claim is likely one of substance, will we consider secondary factors such as the factual and legal complexity of the case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the particular case appointment of counsel would more probably lead to a just resolution of the dispute. Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir.1986).

Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001).

After reviewing the petition and respondent's answer, memorandum of law, and the pertinent exhibits, the Court finds that it would be an abuse of discretion to appoint counsel for petitioner in connection with his habeas petition. The issues presented in the petition are not complex and appear to be capable of decision solely upon review of the state court records, without need for additional factual investigation or an evidentiary hearing at which an attorney's presence and expertise would be necessary. .Accordingly, Yates' motion for the appointment of counsel is denied without prejudice at this time.

III. Motion to Supplement Pleadings

In his motion to file supplemental pleadings (Docket No. 18), Yates alludes to a conspiracy involving the New York State Division of Parole and states that he is being "held hostage" by the Parole Division. Yates asserts that he is not being permitted to move to a new address on the basis that by doing so he would violate the terms of his parole. He asks the Court to exercise supplemental jurisdiction under 28 U.S.C. § 1367 so that he does not have to institute a separate state-court proceeding challenging the actions by the Parole Division which he believes to be improper. This is a merely an attempt by petitioner to evade the exhaustion requirements of 28 U.S.C. § 2254(b)(1) and is improper. Standing alone, this constitutes a "compelling reason[ ] for declining [supplemental] jurisdiction," 28 U.S.C. § 1367(c)(4), at this juncture. Petitioner's motion to supplement pleadings (Docket No. 18) accordingly is denied.

IV. Motion to Strike Petitioner's Sur-Reply

Respondent has filed a declaration (Docket No. 21) seeking to have stricken from the record petitioner's sur-reply (Docket No. 20). Petitioner has filed a reply (Docket No. 23) to respondent's declaration. "[T]the decision to permit a litigant to submit a surreply is a matter left to the Court's discretion, since neither the Federal Rules of Civil Procedure nor the Local Civil Rules of this court authorize litigants to file surreplies." Kapiti v. Kelly, No. 07 Civ. 3782(RMB)(KNF), 2008 WL 754686, at *1 n.1 (Mar. 12, 2008); accord Naverrete De Pedrero v. Schweizer Aircraft Corp., 635 F. Supp.2d 251, 258 (W.D.N.Y. 2009) (Skretny, Ch. J.). This district's local rules of civil procedure provide that "[a]bsent permission by the Court, sur-reply papers are not permitted." Western District of New York, Local Rule 56.1(e); accord, e.g., Lewis v. FMC Corp., No. 04-CV-331S, 2008 WL 4500185, at *1 (W.D.N.Y. Sept. 30, 2008) (Skretny, Ch. J.). Here, petitioner has not sought permission to file a sur-reply. "Allowing parties to submit surreplies is not a regular practice that courts follow, because such a procedure has the potential for placing a court 'in the position of refereeing an endless volley of briefs.'" Kapiti, 2008 WL 754686, at *1 n.1 (quoting Byrom v. Delta Family Care-Disability and Survivorship Plan, 343 F. Supp.2d 1163, 1188 (N.D. Ga.2004) (quoting Garrison v. Northeast Georgia Med. Ctr., Inc., 66 F. Supp.2d 1336, 1340 (N.D.Ga.1999)). Given Yates' rather prolific and prolix filings, the Court finds that permitting a sur-reply in this case will prove true the prediction of the district court in Garrison. Accordingly, respondent's motion to strike petitioner's sur-reply is granted.

IV. Conclusion

The motion for an extension of time to file a reply (Docket No. 15), which was unopposed by respondent, is granted, and Yates' reply is deemed timely filed.

The motion to appoint counsel (Docket No. 17) is denied without prejudice.

The motion to have the Court exercise supplemental jurisdiction (i.e., the motion to supplement pleadings, Docket No. 18), which was opposed by respondent, is denied.

The motion to strike petitioner's sur-reply (Docket No. 21) is granted.

ALL OF THE ABOVE IS SO ORDERED.

Buffalo, New York

20100930

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