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Childres v. Haggett

November 15, 2010

CARL CHILDRES, PETITIONER,
v.
SUPERINTENDENT HAGGETT, RESPONDENT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

This action has been referred to me by Order of Hon. Richard J. Arcara for all proceedings necessary to a determination of the factual and legal issues presented and to prepare and submit a Report and Recommendation [13].*fn1 Before me are petitioner's motions for miscellaneous relief [16] and for appointment of counsel [15, 17, 20]. For the following reasons, I order that petitioner's motion for miscellaneous relief be granted in part and denied in part, and that petitioner's motions for appointment of counsel be denied, without prejudice.

BACKGROUND

Petitioner was convicted of various crimes for allegedly raping his 13 year-old daughter at a motel on July 31, 1999. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. §2254, vacating his conviction because he was deprived of effective assistance of trial and appellate counsel. Petition [1].

ANALYSIS

A. Motion for Miscellaneous Relief

Petitioner's motion for miscellaneous relief seeks various discovery, an extension of time to file a reply to respondent's answer, and appointment of counsel (addressed below) [16].

1. Discovery

"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 (1997). However, "[a] Judge may, for good cause, authorize a party to conduct discovery". Rule 6(a) of the Rules Governing Section 2254 Cases.

a. Production of the Appendix to the Answer

Petitioner alleges that he does "not know if [he has] received a full set of documents" because "[t]he envelope containing the documents [sent by respondent's counsel to petitioner with respondent's answer] was unsealed and ripped open". Petitioner's Affidavit [16], ¶2. In response, respondent argues that "[s]ince there is a table of contents which identifies all of the documents contained within the appendix, petitioner should be capable of making a determination as to what if anything is absent from his copy". Gilligan Affirmation [19], ¶2. Because petitioner fails to identify which documents he believes are missing from the appendix, this aspect of petitioner's motion is denied, without prejudice to renewal identifying the specific missing documents.

b. Production of the Trial, Hearing, and Grand Jury Transcripts*fn2

Petitioner argues that "[i]t is impossible to prosecute this petition without having the benefit of all transcripts from trial, hearings and grand jury proceedings. The reason for this is two fold: 1. Petitioner must carefully examine testimony from People's witnesses to demonstrate that a medical expert would have discredited each and every such witness to the extent that the outcome of the trial would have been more favorable. 2. To demonstrate that in arriving at its decision on this case the Appellate Division, Fourth Department, erroneously applied the facts from the record of proceedings in the case in light of the evidence." Petitioner's Affidavit [16], ¶4.

"The Court does not question in this matter that the habeas petitioner, pro se or otherwise, who is challenging his state court conviction has a legitimate need for the transcripts of the underlying state criminal trial court proceedings". Rodriguez v. Artus, 2008 WL 919629, *1 (W.D.N.Y. 2008) (Foschio, M.J.). Therefore, respondent's counsel shall provide petitioner ...


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