The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case as referred to the undersigned by Honorable Richard J. Arcara, on July 8, 2011, for pretrial matters. The action is presently before the court on Petitioner's motion (Doc. No. 4), filed February 23, 2011, seeking discovery and an order directing Petitioner be produced for an expedited hearing.
On February 23, 2011, Petitioner filed a petition ("Petition") seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 from a judgment of conviction by jury ("the conviction") entered on April 11, 2006 in Monroe County Court of Robbery in the Second Degree (N.Y. Penal Law § 160.10(2)(b), Attempted Robbery in the Third Degree (N.Y. Penal Law §§ 110.00 and 160.05), and two counts of Burglary in the Second Degree (N.Y. Penal Law §§ 140.25(1)(d) and 140.25(2)). Petitioner, who proceeded at trial pro se with court-appointed stand-by counsel, was sentenced on the conviction as a persistent violent felony offender to indeterminate sentences of twenty-five years to life for the second-degree robbery and burglary counts, and twenty years to life on the attempted third-degree robbery count. Petitioner's sentences on the three counts for robbery and burglary were to run concurrently, while his sentence on the attempted robbery count was to run consecutively.
Briefly, the crimes to which the Petition pertains were committed on August 27, 2005, when Petitioner, following a botched robbery of a liquor store in which Petitioner scuffled with the store clerk, smashing bottles of liquor on which both Petitioner and the store clerk sustained multiple lacerations, fled the store on foot and entered the nearby residence of a couple where Petitioner physically restrained a man by pretending to brandish a handgun, and demanded and received money from the couple. Petitioner then coerced the couple from their home to his vehicle, forcing the man into the vehicle's back seat and directing the woman to the driver's seat before instructing her to drive the vehicle away from the scene. Meanwhile, the liquor store clerk, who had activated the store's silent alarm but did not attempt to halt Petitioner's flight from the store, had followed Petitioner to the nearby resident and used a passerby's cell phone to alert the police to the Petitioner's location. The police arrived before the woman had driven Petitioner away in his vehicle, and arrested Petitioner, recovering $51 from his person. After his arrest, Petitioner made a statement indicating that he had been caught "red-handed." The victims, including the liquor store clerk and the man and woman to whose residence Petitioner had fled, identified Petitioner as the perpetrator of the attempted robbery of the liquor store, and the burglary of the residence and the robbery of the couple occupying the residence. Admitted into evidence at trial was the clothing the male half of the couple wore when assaulted by Petitioner, stained with Petitioner's blood from the lacerations sustained during the attempted robbery of the liquor store, and a sample of blood collected from Petitioner's vehicle following his arrest.
Upon appeal to New York Supreme Court, Fourth Department, Petitioner's conviction was unanimously affirmed on November 21, 2008. People v. Caswell, 867 N.Y.S.2d 638 (4th Dept. 2008). Leave to appeal to the New York Court of Appeals was denied on January 28, 2009, People v. Caswell, 902 N.E.2d 442 (N.Y. 2009), and reconsideration was denied on March 17, 2009, People v. Caswell, 906 N.E.2d 1092 (N.Y. 2009). A petition for writ of certiorari was denied by the United States Supreme Court on June 8, 2009. Caswell v. New York, __ U.S. __, 129 S.Ct. 2775 (2009). On December 7, 2009, Petitioner's motion pursuant to New York Criminal Procedure Law ("N.Y. C.P.L.") § 440.20, seeking to set aside his sentence was granted with regard to the attempted third-degree burglary count, on which Petitioner was resentenced, on January 8, 2010, as a second felony offender to an indeterminate prison term of two to four years, to run consecutively to his other sentences.
On February 23, 2011, Petitioner filed the instant Petition for habeas relief. On February 23, 2011, Petitioner filed a motion (Doc. No. 4) ("Petitioner's motion"), seeking discovery of allegedly exculpatory trial and sentencing hearing exhibits with which Petitioner maintains Respondents failed to produce in connection with Petitioner's direct appeal of his conviction. Petitioner also seeks an order directing an expedited evidentiary hearing on the petition, and Petitioner's appearance at the hearing. Petitioner's motion is supported by the attached Affidavit of Reggie D. Caswell ("Petitioner's Affidavit"), and Memorandum of Law ("Petitioner's Memorandum").
Although Respondent did not file any response to Petitioner's motion, several of the issues raised in Petitioner's motion are addressed in Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus (Doc. No.16) ("Respondent's Memorandum"), filed August 12, 2011. On September 26, 2011, Petitioner filed an Affirmation Seeking Discovery Pursuant to Local Rule § 37 (Doc. No. 21) ("Petitioner's Affirmation"), in which Petitioner reiterates his request for discovery of the six items of evidence Petitioner's motion seeks to have produced.
Based on the following, Petitioner's motion (Doc. No. 4) is DENIED.
Petitioner seeks discovery of evidence outside the State Court Record, as well as an evidentiary hearing to consider such evidence and a court order directing Petitioner's appearance at the requested evidentiary hearing. As stated, Respondent has not directly responded in opposition to Petitioner's motion, but addresses the issues raised therein in papers filed in response to the Petition, particularly, in Respondent's Memorandum. A review of Petitioner's motion demonstrates that the discovery Petitioner seeks would not support any of the grounds on which Petitioner seeks habeas relief, rendering moot the requests for an evidentiary hearing to consider such evidence, as well as for a court order directing Petitioner's appearance at the hearing.
"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of course." Bracy v. Gramley, 520 U.S. 899, 904 (1997) (citing Harris v. Nelson, 394 U.S. 286, 295 (1969) (concluding the "broad discovery provision" of the Federal Rules of Civil Procedure do not apply in habeas proceedings)). Nevertheless, pursuant to Rule 6(a) of the Federal Habeas Corpus Rules ("Rule 6(a)"), a judge has discretion to authorize, upon a showing of good cause, discovery in a §2254 proceeding under the same discovery devices available under the Federal Rules of Civil Procedure. 28 U.S.C. § 2254 Rule 6(a); See Bracy, 520 U.S. at 904 (discussing how the Supreme Court, "to formulate rules of practice with respect to federal habeas corpus . . . proceedings, . . . . in 1976, promulgated and Congress adopted the Rules Governing § 2254 Cases."). The "good cause" standard is satisfied when "'specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.'" Bracy, 520 U.S. at 908-09 (quoting Harris, 394 U.S. at 300). Generalized statements about the possible existence of ...