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Glen Cummins, Pro Se v. William Lee

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


August 4, 2011

GLEN CUMMINS, PRO SE,
PETITIONER,
v.
WILLIAM LEE,
RESPONDENT.

The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

SUMMARY ORDER

On February 25, 2010, pro se*fn1 petitioner Glen Cummins filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 2006 Queens County Supreme Court conviction. *fn2 On December 20, 2010, Petitioner filed a Motion for Discovery, Motion to Expand the Record pursuant to Rule 7 of the Rules Governing § 2254 Cases in the United States District Court ("Rules Governing §2254 Cases"), and a Motion for an Evidentiary Hearing pursuant to Rule 8 of the Rules Governing § 2254 Cases. (See Docket Entry 14.) For the reasons set forth below, these motions are denied in their entirety.

As an initial matter, the court has granted Petitioner's requests for discovery on multiple occasions prior to the instant Motion. Petitioner now requests additional discovery in order to support his assertions that Respondent was not forthcoming about Respondent's role in witness Abdul Muhammed's release from a Binghamton, New York jail.

"[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). Rule 6(a) of the Rules Governing § 2254 Cases specifies that a habeas petitioner is entitled to discovery "if, and to the extent that, the judge in the exercise of his discretion for good cause shown grants leave to do so, but not otherwise." See Bracy, 520 U.S. at 904. Whether a petitioner has demonstrated "good cause" depends on whether the petitioner has asserted specific allegations that provide "reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . entitled to relief." Id. at 908-09 (quotation omitted).

By Order dated January 7, 2011, Respondent was directed to comply with Petitioner's discovery requests. (See Docket Entry 15.) After reviewing Petitioner's letter dated January 19, 2011 and Respondent's discovery submissions, the court does not find good cause to warrant further discovery of the information requested. (See Docket Entry 16.) Petitioner's mere allegation that Respondent was involved in Abdul Muhammad's release from a Binghamton, New York jail, without more, does not give the court "reason to believe" that Respondent had any actual involvement. Other than Petitioner's bald allegation that Respondent was not forthcoming about its role in Muhammad's release from jail in Binghamton, the court has no basis for questioning Respondent's representation that it does not possess any documents relating to the matter alleged.*fn3 Moreover, "in the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties." United States v. Mezzanatto, 513 U.S. 196, 210 (1995) (quoting United States Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).

CONCLUSION

Accordingly, Petitioner's motions are denied. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

DORA L. IRIZARRY United States District Judge


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