United States District Court, N.D. New York
DESMOND DEFREITAS, Petitioner, pro se Clinton Correctional
Facility, HON. ERIC T. SCHNEIDERMAN Attorney for Respondent
Office of the Attorney General
A. RAMBAUD, AAG
DECISION AND ORDER
T. BAXTER, United States Magistrate Judge
INTRODUCTION Petitioner Desmond DeFreitas filed a
second motion to stay his petition for a writ of habeas
corpus, along with several exhibits. Dkt. No. 26, Letter
Motion; Dkt. Nos. 26-1 through 26-6, Exhibits. He also asks
the court to appoint counsel. See Dkt. No. 26 at
Respondent opposes the motion to stay, and any motion to
amend that is "implicitly contain[ed]" in
petitioner's motion papers. Dkt. No. 29, Opposition
Letter. For the reasons that follow, petitioner's motions
MOTION FOR COUNSEL
states that counsel is necessary to assist him because he is
"housed in the APPU unit" at the Clinton
Correctional Facility, and he is being denied access to the
courts because "none of the law clerks" at the
prison are "qualified or knowledgable [sic] enough"
to assist him. Dkt. No. 26 at 2. As the court noted in its
June 17, 2016 Decision and Order, there is no constitutional
right to representation by counsel in habeas corpus
proceedings. Dkt. No. 6 at 2 (citing Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987)). A court may appoint
counsel for "any financially eligible person" where
"the interests of justice so require[.]" 18 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 v. Walker, No. 9:00-CV-0197 (TJM/DEP), 2005 WL
2260340 at *4 (N.D.N.Y. Sept. 15, 2005); see Hodge v.
Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986).
has not been granted in formal pauperis status, and therefore
is ineligible for appointment of counsel. But even assuming
petitioner is a "financially eligible person" under
18 U.S.C. §3006A (a)(2)(B), there is no "special
reason" why appointing counsel to assist petitioner is
warranted. Hodge, 802 F.2d at 62. Petitioner has not
demonstrated that his claims are overly complex, or that
"appointment of counsel would be more likely to lead to
a just determination." Brito v. Burge, No.
1:04-CV-1815, 2005 WL 1837954 at *2 (S.D.N.Y.
2004) (citing Terminate Control Corp v. Horowitz, 28
F.3d 1335, 1341 (2d Cir. 1994)). His request for appointment
of counsel is denied.
THE MOTION TO STAY
to the motion to stay, petitioner claims that a witness
statement and a police report were altered to assist the
prosecutor's case. First, he claims that it is "his
recollection" that at a bail hearing held on or about
September 28, 2008, the prosecutor read into the record a
statement by S.R., a witness. Dkt. No. 26 at 1-2. According
to petitioner, S.R. originally claimed that petitioner and
S.R.'s sister, A.R., "entered the residence at 306
Kingsley Rd, " S.R. "heard someone within the
house, using a hammer, " and petitioner and A.R. exited
the house with "kitchen cabinets." Id.
Petitioner claims that although the prosecutor later
disclosed to him a statement made by S.R., there is
"absolutely no mention of somebody using a
hammer inside the residence at 306 Kingsley Rd."
Id. at 2 (emphasis in original). Petitioner
"believe[s] that it would be fair to speculate that the
prosecutions' team, had S.R. sign a 'new and
improved' (for their purpose) statement, omitting the
portion wherein she claimed to have heard the use of a
hammer." Id. (citing Dkt. No. 24-4 at pages
labeled R-199 to R-205). Petitioner attached affidavits from
Concetta DeFreitas, Francesca Ciro, and Salvatore Curto
attesting that they, too, remember the prosecutor reading a
statement by S.R. at the bail hearing that referenced the use
of a hammer. See Dkt. No. 26-4 at R-206 (Affidavit
of Concetta DeFreitas, dated March 2, 2015); Dkt. No. 26-4 at
R-207 (Affidavit of Francesca Ciro, dated June 17, 2015);
Dkt. No. 26-4 at R-208 (Affidavit of Salvatore Curto, dated
Dec. 23, 2016).
next argues that a police report was improperly altered. Dkt.
No. 26-4 at 2. The report in question was prepared by New
York State Police Investigator George Bird. Dkt. No. 26-1 at
¶¶111-20 (citing Dkt. No. 26-3 at R-130-36).
Petitioner states that the second page of the report,
originally dated January 23, 2009, was later replaced by a
page with different content that is dated February 2, 2009.
See Dkt. No. 26-1 at ¶115; Dkt. No. 26-3 at
R-131-32. Petitioner appears to argue Investigator Bird
"purposefully altered" the report to aid the
prosecutor's case by eliminating any reference to an
incident that occurred on "Easter Sunday 2008."
Dkt. No. 26-1 at ¶¶118, 119. He also states that
the fifth page of the report was altered because it bears a
different date than pages one through four and six.
Id. at ¶120. Petitioner claims, "I believe
that Investigator Bird removed all mention of the 'Easter
Sunday 2008' incident to directly aid the
prosecution's case, " and that Investigator
Bird's "actions deprived [petitioner's] defense
attorney the opportunity to use this information to prove
that these cases were false" and to challenge
Investigator Bird's credibility. Id. at
states that he intends to file a motion to vacate his
conviction in state court based on these allegations, but has
not done so because he is "conducting an ongoing
investigation, along with collecting evidence." Dkt. No.
26-1 at 3. He also complains that the Schoharie County
District Attorney's Office failed to comply with a court
order requiring disclosure of certain ...