Opinion
04 Civ. 6131 (SHS)(KNF).
February 27, 2006
MEMORANDUM and ORDER
Bobby Lango ("Lango") has petitioned the Court for a writ of habeas corpus in accordance with the 28 U.S.C. § 2254. Lango has requested that the Court hold an evidentiary hearing on the issue of whether he was present at a proceeding held in the New York State Supreme Court, New York County, on October 12, 2000, at which his trial counsel surrendered a psychiatric report prepared for him about Lango to the court and to the prosecuting attorney. Lango maintains that he was not present for the court proceeding. Lango contends that establishing that fact at an evidentiary hearing, will facilitate the Court's analysis and adjudication of his application for the writ. In addition, according to Lango, he needs counsel to assist him at the evidentiary hearing specifically and, more generally, to help him secure the habeas corpus relief he seeks through the application for the writ.
The respondent opposes the petitioner's application for an evidentiary hearing and Lango's request that counsel be appointed to assist him. The respondent maintains that any factual record that needed to be developed concerning the petitioner's attendance at a proceeding in the New York State Supreme Court, New York County, on October 12, 2000, could have been developed by the petitioner in connection with his attempt to secure collateral relief in the state court through a motion he made pursuant to New York's Criminal Procedure Law Section 440.10. According to the respondent, since the petitioner failed to develop the factual basis for his claim in the state court proceeding, he may only obtain an evidentiary hearing in this court concerning the claim upon a showing, that the claim is premised on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or a factual predicate that could not have been previously discovered through the exercise of due diligence; and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant [for the writ of habeas corpus] guilty of the underlying offense." 28 U.S.C. § 2254(e)(2)(A)(i), (ii) (B).
The Court agrees. The petitioner has not established that a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court is implicated in this case. In addition, there has been no showing by the petitioner that a factual predicate that could not have been discovered previously through the petitioner's exercise of due diligence exists in this case. Moreover, inasmuch as the petitioner pleaded guilty to the offenses that occasioned his current incarceration and thereby admitted his guilt, his presence or absence at a proceeding on October 12, 2000, would play no role in a factfinder's determination of Lango's guilt of the underlying offenses. Therefore, the Court finds that no need for an evidentiary hearing exists; Lango's request for such a hearing is denied.
In a habeas corpus proceeding, the appointment of counsel is discretionary. See Coita v. Leonardo, No. 96 Civ. 1044, 1998 WL 187416, at *1 (N.D.N.Y. Apr. 14, 1998). Among the factors which a court may consider in determining whether to grant a habeas corpus petitioner's application for appointment of counsel, is whether an evidentiary hearing should be held in connection with the petition. Where no hearing is to be held, the appointment of counsel is not warranted. See U.S. ex rel Cadogan v. LaVallee, 502 F.2d 824, 826 (2d Cir. 1974); see also Adams v. Greiner, No. 97 Civ. 3180, 1997 WL 266984 (S.D.N.Y. May 20, 1997). As noted above, the Court has determined to deny Lango's request that an evidentiary hearing be held. Accordingly, the petitioner's request for appointed counsel is also denied.
Lango has also requested that he be allowed to take discovery to demonstrate that he was not present at the October 12, 2000 court proceeding referenced above. However, based on the record before the Court, which includes transcripts of pertinent court proceedings that occurred on October 12, 2000, and October 13, 2000, which indicate that Lango was present at the October 12, 2000 proceeding, discovery does not seem to be warranted. Lango's presence or lack thereof, at the October 12, 2000 court proceeding could be established by him without taking discovery, for example, by submitting an affidavit from his trial counsel that indicates whether Lango attended the court session at issue.
In summary, for the reasons set forth above, the application made by the petitioner for an evidentiary hearing and for the Court to appoint counsel to represent him is denied.
SO ORDERED.