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DeFreitas v. Kirkpatrick

United States District Court, N.D. New York

March 6, 2017

DESMOND DEFREITAS, Petitioner,
v.
MICHAEL KIRKPATRICK, Respondent.

         APPEARANCES:

          DESMOND DEFREITAS, Petitioner, pro se Clinton Correctional Facility, HON. ERIC T. SCHNEIDERMAN Attorney for Respondent Office of the Attorney General

         OF COUNSEL:

          DENNIS A. RAMBAUD, AAG

          DECISION AND ORDER

          ANDREW T. BAXTER, United States Magistrate Judge

         I. 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 2.[1] 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 are denied.

         II. MOTION FOR COUNSEL

         Petitioner 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).

         Petitioner 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.

         Mar. 8, 2004) (citing Terminate Control Corp v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994)). His request for appointment of counsel is denied.

         III. THE MOTION TO STAY

         Turning 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).

         Petitioner 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 ¶119.

         Petitioner 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 ...


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