Hayon v. Reardon

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSEPH HAYON,

Petitioner,

MEMORANDUM & ORDER

- against - 20-CV-4668 (PKC)

PATRICK REARDON,

Respondent.

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PAMELA K. CHEN, United States District Judge:

Joseph Hayon, proceeding pro se, petitions for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This Memorandum and Order addresses several motions and requests by Petitioner

currently pending before the Court: (1) a motion for a “preliminary injunction,” which effectively

is a motion for bail pending determination of Petitioner’s habeas petition (Dkt. 5); (2) a motion for

the Court to issue the writ “forthwith” (Dkt. 6); (3) a motion for appointment of counsel under the

Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A (Dkt. 12); and (4) several requests made in

Petitioner’s Memorandum of Law in support of his motion for bail, including a request for an

evidentiary hearing (Dkt. 14).

BACKGROUND

Because this order seeks to provide an expeditious decision on the currently pending

motions and does not rule on the ultimate merits of the habeas petition, it focuses on the

background relevant to the instant motions and requests. Any factual issue determined by the state

court is presumed to be correct, unless rebutted by “clear and convincing evidence.” See 28 U.S.C.

§ 2254(e)(1). At the same time, given Petitioner’s pro se status, his filings are “construed liberally

and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citations, internal quotations, and alterations omitted)

I. State Court Trial and Direct Appeal Proceedings

In 2017, following a jury trial, Petitioner was convicted of 94 counts of possession of a

sexual performance by a child, in violation of N.Y. Penal Law § 263.16. (Petition, Dkt. 1, at ECF1

1.) On January 31, 2018, the state trial court sentenced Petitioner to 1⅓–4 years’ incarceration on

all counts, to be served concurrently. (Id.; see also Respondent’s Affirmation Opposing Motion

for Preliminary Injunction (“Resp. Aff.”), Dkt. 8, ¶ 9.) On the same day, the state trial court

granted Petitioner’s application for poor person relief on appeal. (Dkt. 8-2.)

One day later, on February 1, 2018, Petitioner, through his trial attorney, filed a Notice of

Appeal. (Dkt. 8-3.) However, because Petitioner’s trial attorney improperly filed the Notice of

Appeal, the Appellate Division, Second Department (“Appellate Division”) did not open a case

file and assign a docket number until June 11, 2018.2 (Dkt. 8-4; see also Petitioner’s Affirmation

Supporting Motion for Preliminary Injunction (“Pet’r. Aff.”), Dkt. 13, at ECF 7.) One month later,

on July 11, 2018, the Appellate Division assigned Appellate Advocates, a non-profit public

defender organization, to represent Petitioner on direct appeal, and ordered that transcripts of all

pre-trail hearings, jury selection, trial, and sentencing proceedings be produced. (Dkt. 8-5.) After

1 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

2 Petitioner admits that his trial attorney improperly filed the Notice of Appeal with the

Appellate Division instead of with the trial court, but maintains that “the Appellate Division

clerk . . . should have notified my attorney that [the Notice of Appeal] was improperly filed.”

(Pet’r. Aff., Dkt. 13, at ECF 7.) Additionally, according to Petitioner, he recently realized that this

was the reason for the delay in having a case file opened and docket number assigned. (Id.) It

seems that at the time of these events in 2018, Petitioner was simply aware that there was a delay

and began inquiring, through a friend, about when he would be appointed appellate counsel. (Id.

at ECF 2; see also Affirmation of Odelia Cohen, Dkt. 15.)

these transcripts were produced,3 Appellate Advocates submitted a request to the Kings County

District Attorney’s Office on May 16, 2019, for exhibits from Petitioner’s suppression hearing and

trial. (Dkt. 8-6.) This request, Respondent represents, was effectively fulfilled by November 7,

2019.4 (Resp. Aff., Dkt. 8, ¶ 13.)

While the request for exhibits was pending, Appellate Advocates filed a motion with the

Appellate Division on September 16, 2019, to enlarge the appellate record to include transcripts

of minutes from eleven additional pre-trial proceedings, arguing that speedy-trial issues had been

litigated below and transcripts from such proceedings were “necessary to the appeal.” (Dkt. 8-7,

at ECF 5, 7.) Petitioner, on his own, filed a supplemental affidavit on September 22, 2019, in

support of the motion to enlarge the record. (Dkt. 8-8.) Petitioner’s supplemental affidavit was

rejected because he was represented by counsel. (Pet’r. Aff., Dkt. 13, at ECF 3, 18–19.) The state

took no position on the motion. (Dkt. 8-9, at ECF 3.) Several months later, on January 13, 2020,

the Appellate Division issued a decision and order granting the motion to enlarge the appellate

record and directing the stenographer of the trial court to certify and file copies of transcripts from

the additional pre-trial proceedings “within 45 days of the date of this decision and order.” (Dkt.

8-10, at ECF 2.) It appears these additional transcripts were not prepared until September 30,

2020. (Resp. Aff., Dkt. 8, ¶ 18.) To date, Petitioner’s direct appeal has not been perfected. (Id.

¶ 19.)

3 Shortly after being appointed appellate counsel, Appellate Advocates sent Petitioner a

letter on July 31, 2018, informing Petitioner that “[i]t generally takes anywhere from six to nine

months . . . to receive the complete record on appeal.” (Dkt. 8-15, at ECF 72.)

4 Several exhibits were not provided because they contained child pornography, and one

hearing exhibit was provided in redacted form. (Resp. Aff., Dkt. 8, ¶ 13.)

In May 2019, Petitioner became eligible for, but was denied, parole. (Id. ¶ 24 (citing Dkt.

8-14).) The parole board provided the following reasons for the denial of parole:

A review of the record, a personal interview and deliberation lead this panel to

conclude that there is a reasonable probability that if released at this time, you

would not live and remain at liberty without again violating the law. Accordingly,

parole is denied. Your instant offense of possessing a sexual performance by a

child less than 16 years old represents your first NYS incarceration and the only

conviction in your criminal history. Your case plan goals are positive and you are

currently engaged in programs. The panel notes that you were removed from SOP

counseling due to your refusal to admit to sex offending behavior as a result of the

appeal of your conviction. Your disciplinary record is a concern. You have

avoided serious violations but have accrued approximately 9 Tier 2 violations,

which gives the panel concerns about your ability to follow the rules of society and

while on parole. The COMPAS5 risk assessment indicates low risk. However, due

to the nature of the instant offense, the lack of programming to address the sex

offending behavior and the concerns about your discipline noted above, the panel

departs from the COMPAS. As such, your discretionary release at this time would

be incompatible with the welfare of society.

(Dkt. 8-15, at ECF 11.) Petitioner’s next parole hearing is scheduled to take place in January 2021.

(Resp. Aff., Dkt. 8, ¶ 50; see also Dkt. 8-15, at ECF 11.)

II. Collateral Proceedings

During the pendency of his direct appeal, Petitioner, acting pro se, has filed several

collateral motions in both state and federal court. Notably, on June 12, 2019, Petitioner filed a pro

se motion under New York Criminal Procedure Law (“CPL”) § 460.50 in the state trial court to

stay his conviction and be released either on his own recognizance or on bail pending appeal.6

5 COMPAS stands for “Correctional Offender Management Profiling for Alternative

Sanctions.” See https://doccs.ny.gov/system/files/documents/2020/11/8500.pdf (last viewed

12/29/20); see also Amaker v. Schiraldi, No. 15-CV-4879 (CBA) (VMS), 2017 WL 4402443, at

*3 (E.D.N.Y. Sept. 29, 2017).

6 CPL § 460.50 provides in relevant part:

Upon application of a defendant who has taken an appeal to an intermediate

appellate court from a judgment or from a sentence of a criminal court, a judge

designated in subdivision two may issue an order both (a) staying or suspending

the execution of the judgment pending the determination of the appeal, and

(Dkt. 8-11.) The bail motion raised, among other issues, a statutory speedy-trial violation and

ineffective assistance of trial counsel based on trial counsel’s failure to impeach the state’s

witnesses, waiver of objections, and failure “to investigate whether Jewish-Americans were

systematically or intentionally underrepresented in the jury wheel, the relevant jury pool, and the

venire for [Petitioner’s] trial.” (Id. at ECF 5–12, 27–28.) The state opposed the motion. (Dkt. 8-

14.) On October 30, 2019, the state trial court denied Petitioner’s CPL § 460.50 motion in its

entirety, concluding that it was “unlikely that [Petitioner’s] conviction would be reversed on his

appeal,” based on the factors Petitioner raised. (Dkt. 8-17, at ECF 8.)

On July 8, 2019, Petitioner filed a pro se motion in the state trial court seeking to vacate

his conviction under CPL § 440.10 based on a constitutional speedy trial violation.7 (Dkt. 8-18.)

On February 14, 2020, the state trial court denied the motion, holding that, upon “balancing all of

the factors,” Petitioner “was not deprived of his constitutional right to a speedy trial.” (Dkt. 8-21,

at ECF 6.) Petitioner applied for leave to appeal this decision in both the Appellate Division and

the Court of Appeals. (Dkts. 8-22, 8-23.) The Court of Appeals denied leave in June 2020 (Dkt.

8-25), and the Appellate Division denied leave in July 2020 (Dkt. 8-26).

In August 2019, Petitioner petitioned for a state writ of habeas corpus,8 which was

ultimately denied. (See Pet’r. Aff., Dkt. 13, at ECF 5.) Additionally, it appears Petitioner has filed

(b) either releasing the defendant on his own recognizance or fixing bail pursuant

to the provisions of article five hundred thirty.

N.Y. Crim. P. Law § 460.50(1).

7 CPL § 440.10(1)(h) provides: “At any time after the entry of a judgment, the court in

which it was entered may, upon motion of the defendant, vacate such judgment upon the ground

that the judgment was obtained in violation of a right of the defendant under the constitution of

this state or of the United States[.]” N.Y. Crim. P. Law § 440.10(1)(h).

8 New York Civil Practice Law and Rules provides that “[a] person illegally imprisoned

or otherwise restrained in his liberty within the state . . . may petition without notice for a writ of

several other state habeas petitions in the past year, all of which have been denied. (See

Respondent’s Memorandum of Law (“Resp. Mem.”), Dkt. 8-1, at 5 n.4.)

On September 30, 2019, Petitioner filed a petition for a writ of habeas corpus under 28

U.S.C. § 2254 in this Court. Petition, Hayon v. Smith (Hayon I), No. 19-CV-5545 (PKC)

(E.D.N.Y. Sept. 30, 2019), ECF No. 1. By order on October 8, 2019, the Court sua sponte

dismissed the petition without prejudice for failure to exhaust state remedies. Memorandum &

Order at 3–4, Hayon I, No. 19-CV-5545 (PKC) (E.D.N.Y. Oct. 8, 2019), ECF No. 3. Petitioner

moved to amend the Court’s judgment partly on the basis that the delay in Petitioner’s state-court

direct appeal excused his failure to exhaust. Motion to Amend Judgment, Hayon I, No. 19-CV-

5545 (PKC) (E.D.N.Y. Nov. 1, 2019), ECF No. 5. The Court denied Petitioner’s motion, finding

at that time that “the 20-month delay relating to his direct appeal [was] not so unreasonable so as

to establish undue delay.” Docket Order, Hayon I, No. 19-CV-5545 (PKC) (E.D.N.Y. Dec. 9,

2019) (citing Richard-Antonio v. O’Meara, No. 12-CV-5174 (LAK) (SN), 2013 WL 5019395, at

*8 (S.D.N.Y. May 21, 2013)). Petitioner filed a Notice of Appeal on January 21, 2020. Notice of

Appeal, Hayon I, No. 19-CV-5545 (PKC) (E.D.N.Y. Jan. 21, 2020), ECF No. 8. The Second

Circuit dismissed the appeal for lack of jurisdiction because the Notice of Appeal was not timely

filed. See Second Circuit Mandate, Hayon I, No. 19-CV-5545 (PKC) (E.D.N.Y. Sept. 21, 2020),

ECF No. 9.

III. Current Proceedings and Motions

On September 25, 2020, Petitioner filed the present habeas petition in this case. (Dkt. 1.)

The petition ostensibly raises four grounds for granting the writ: (1) denial of due process because

habeas corpus to inquire into the cause of such detention and for deliverance.” N.Y. C.P.L.R.

§ 7002(a).

the state trial court denied Petitioner’s motion for bail pending appeal without appointing him an

attorney, which decision “was arbitrary” (id. at ECF 9); (2) violation of Petitioner’s constitutional

right to a speedy trial, as well as ineffective assistance of trial counsel because trial counsel “failed

to properly argue the constitutional speedy trial claim” (id. at ECF 11); (3) violation of Petitioner’s

constitutional right to a speedy appeal (id. at ECF 15); and (4) an allegedly “unconstitutional jury

wheel” because “[t]here were no Jews in the jury wheel,” and “Brooklyn has a lot of Jews” (id. at

ECF 17).9 The petition also purports to “reserve the ability to raise addition[al] grounds for relief

since not all [of Petitioner’s] claims are exhausted.” (Id. at ECF 24.) On October 19, 2020, the

Court issued an order for Respondent to show cause within 60 days “why a writ of habeas corpus

should not be issued.” (10/19/2020 Docket Order.)

On November 5, 2020, the Court received a motion from Petitioner styled as a motion for

preliminary injunction, although the relief sought in the motion is bail of $1.00 pending

determination of the habeas petition. (Dkt. 5, at ECF 4.) Therefore, the Court construes the motion

as one for bail.

On November 9, 2020, the Court received from Petitioner a “motion to issue writ of habeas

corpus forthwith pursuant to 28 U.S.C.A. § 2243.” (Dkt. 6, at ECF 1.) The same document also

contains a motion for appointment of counsel under the CJA. (Id. at ECF 3.)

On November 11, 2020, the Court ordered Respondent to respond to Petitioner’s motion

for preliminary injunction/bail within two weeks, and more specifically, to “update[e] the Court

on the status of Petitioner’s direct appeal before the state court and discuss[] whether any delay in

those proceedings justifies granting Petitioner any relief.” (11/11/2020 Docket Order.) The Court

also amended its October 19, 2020 Order to Show Cause to allow Respondent until January 15,

9 Petitioner is an Orthodox Jew. (See Pet’r. Aff., Dkt. 13, at ECF 6–7.)

2021, to file a return to the petition. (Id.) Respondent submitted an opposition to the motion for

bail on November 20, 2020. (Dkt. 8.)

On December 14, 2020, the Court received several documents from Petitioner. First, the

Court received a motion reiterating Petitioner’s request for appointment of counsel under the

CJA.10 (Dkt. 12.) Second, the Court received an affirmation and memorandum of law in support

of Petitioner’s motion for bail. (Dkts. 13, 14.) In addition to replying to Respondent’s opposition,

Petitioner’s memorandum makes several other requests—including that an evidentiary hearing be

held to investigate his claim of appellate delay; that the City of New York, State of New York,

and/or their agencies be ordered to amend any contract with Appellate Advocates so that Appellate

Advocates is paid at least $150 per hour; and that Appellate Advocates accordingly be ordered to

“hire more attorneys to accommodate their huge caseload.” (Petitioner’s Memorandum of Law

(“Pet’r. Mem.”), Dkt. 14, at ECF 1, 15.)

DISCUSSION

I. Motion for Bail

“[A] district court has inherent power to enter an order affecting the custody of a habeas

petitioner who is properly before it contesting the legality of his custody.” Mapp v. Reno, 241

F.3d 221, 226 (2d Cir. 2001) (quoting Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir.

1978)). But such power is limited, “to be exercised in special cases only.” Id. “The standard for

bail pending habeas litigation is a difficult one to meet: The petitioner must demonstrate that ‘the

habeas petition raises substantial claims and that extraordinary circumstances exist that make the

grant of bail necessary to make the habeas remedy effective.” Grune v. Coughlin, 913 F.2d 41, 44

10 This motion for appointment of counsel specifically names Attorney Gary Donoyan.

(Dkt. 12, at ECF 1.) It appears Petitioner has spoken to Donoyan, who “said he would be willing

to” represent Petitioner under the CJA. (Id.)

(2d Cir. 1990) (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)); accord Mapp, 241

F.3d at 226; see also Morrow v. Capra, No. 18-CV-5765 (AMD) (LB), 2020 WL 3316017, at *2

(E.D.N.Y. June 17, 2020) (“To be eligible for bail, the petitioner must show: (1) that his petition

makes ‘substantial’ claims, (2) that he has demonstrated a likelihood of success on the merits of

his petition, and (3) that ‘extraordinary or exceptional circumstances exist which make the grant

of bail necessary to make the habeas remedy effective.’” (internal quotation marks and citations

omitted)).

Petitioner’s habeas petition raises four, possibly five, claims: (1) a due-process claim

regarding the state trial court’s denial of Petitioner’s bail motion; (2) a constitutional speedy-trial

claim, which appears also to include a potential ineffective-assistance-of-trial-counsel claim;

(3) an appellate-delay claim; and (4) a claim of an “unconstitutional jury wheel” because of the

lack of Jews. (Petition, Dkt. 1, at ECF 9–19.) It does not appear that all of these claims have been

properly exhausted. (See id.) See also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate

prisoners must give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process.”).

Nevertheless, “it is now clear in this circuit that substantial delay in the state criminal

appeal process is a sufficient ground to justify the exercise of federal habeas jurisdiction.” Cody

v. Henderson, 936 F.2d 715, 718 (2d Cir. 1991) (collecting cases). Moreover, “the right to a

reasonably timely appeal is included among the protections afforded by the due process clause

when a state does provide for an appeal.” Id. at 719 (citing Simmons v. Reynolds, 898 F.2d 865,

868 (2d Cir. 1990)); see also Brooks v. Jones, 875 F.2d 30, 32 (2d Cir. 1989) (“[F]ederal habeas

review remains available to protect indigent prisoners’ rights to appeal.” (internal quotation marks

and citation omitted)). Thus, an unreasonable delay in the state-court appellate process may not

only excuse a failure to exhaust but also in itself be a constitutional violation justifying federal

habeas relief.

The Court need not—and does not—decide the merits of Petitioner’s appellate-delay claim

(or any other claim in the petition) at this juncture, because even assuming that Petitioner raises a

substantial claim in his habeas petition, he has not demonstrated the existence of “extraordinary

circumstances” that “make the grant of bail necessary to make the habeas remedy effective.”

Grune, 913 F.2d at 44 (quoting Iuteri, 662 F.2d at 161); accord Mapp, 241 F.3d at 226 (quoting

Ostrer, 584 F.2d at 596 n.1). To start, Petitioner has not shown that his release on bail is necessary

to make the habeas remedy effective, particularly with respect to his appellate-delay claim. See

Mapp, 241 F.3d at 230–32 (vacating the district court’s grant of bail because, even assuming there

was a substantial claim for relief and the circumstances were extraordinary, the district court

“neglected to articulate why its grant of bail was necessary to make the habeas remedy effective”

(internal quotation and citation omitted)). With respect to Petitioner’s appellate-delay claim, the

Second Circuit has made clear that he would not be entitled to “unconditional release from

custody” as a habeas remedy even if he proved undue appellate delay “unless [he could]

demonstrate that appellate delay caused substantial prejudice to the disposition of his appeal.”

Cody, 936 F.2d at 719. In other words, to obtain unconditional habeas relief on his appellate-delay

claim, the petitioner must show “there is a reasonable probability that, but for the delay, the result

of the appeal would have been different.” Mathis v. Hood, 937 F.2d 790, 794 (2d Cir. 1991) (citing

Strickland v. Washington, 466 U.S. 668 (1984)). Absent such a showing of prejudice, a petitioner

is at most entitled to a conditional writ, see Cody, 936 F.2d at 720, which is “an alternative writ

that orders the state either to prosecute the appeal within a specified reasonable period of time, or

to release the petitioner,” Simmons, 898 F.2d at 869; see also Roberites v. Colly, 546 F. App’x 17,

21 (2d Cir. 2013) (summary order) (granting a conditional writ based on an appellate-delay claim

without a finding of substantial prejudice, ordering the petitioner to be released unless his appeal

was decided by a specified date). Because Petitioner here has provided no indication that the delay

in his state court appeal is likely to prejudice its outcome, the only habeas relief he is likely entitled

to is a conditional writ—i.e., a direction to the state court to decide Petitioner’s appeal by a certain

date or release him—based on his claim of appellate delay. Petitioner’s immediate release on bail

is not necessary to make that habeas remedy effective.

The Court also does not find the circumstances in this case to be sufficiently

“extraordinary” to warrant immediate release on bail. Petitioner argues that his case is

extraordinary because of the delayed direct appeal; the “futility of the state courts” as shown by

their “arbitrary decisions” and “misfiling of documents”; the “unconstitutional prison conditions”

he allegedly faces, including a purported lack of sufficient accommodation for his Jewish faith,

harassment by prison officials when he asks for or complains about religious accommodations,

and detention in the Special Housing Unit (i.e., solitary confinement) on 11 occasions in less than

three years; the fact that he has served almost 75% of his maximum sentence of four years; his

denial of parole in 2019 because of his refusal to talk about his conviction, given his pending direct

appeal; and, finally, the “[l]ikelihood of success.” (Pet’r. Mem., Dkt. 14, at ECF 12, 14; see also

Petitioner’s Supplement to Motion for Bail, Dkt. 7, at ECF 2–3; Pet’r. Aff., Dkt. 13, at ECF 6–7.)

The Court does not doubt that Petitioner has faced hardships in prison, but his allegations,

either individually or in combination, do not demonstrate that this is one of the “special cases,”

Mapp, 241 F.3d at 226, where immediate release on bail is justified. As an initial matter, “a

petitioner’s continued confinement during habeas review is normally not considered an

extraordinary circumstance entitling him to bail.” United States v. Callahan, No. 13-CR-453 (S-

1) (ADS), 2019 WL 3457987, at *3 (E.D.N.Y. July 31, 2019) (collecting cases); see also Iuteri,

662 F.2d at 162 (reversing a grant of bail to habeas petitioner and noting that, because “[v]irtually

all habeas corpus petitioners argue that their confinement is unlawful,” there is “nothing unusual”

about the possibility that a petitioner’s incarceration will “have been without basis”). Additionally,

“in general, the difficulties attendant on prison life, such as transfers between facilities, solitary

confinement, lockdowns, restricted access to the law library, and an inability to secure court

documents, do not by themselves qualify as extraordinary circumstances.” Montes v. James, No.

20-CV-150 (TJM), 2020 WL 1302307, at *3 (N.D.N.Y. Mar. 19, 2020) (quoting Corrigan v.

Barbery, 371 F. Supp. 2d 325, 330 (W.D.N.Y. 2005)). Nor is it necessarily extraordinary that

Petitioner has almost completed his maximum sentence. See United States v. Whitman, 153 F.

Supp. 3d 658, 661 (S.D.N.Y. 2015) (citing Jackson v. Bennett, No. 01-CV-8971 (NRB), 2002 WL

126679, at *1 (S.D.N.Y. Jan. 31, 2002)). Petitioner also argues that his delayed appeal has

impacted his ability to be released on parole (e.g., Dkt. 7, at ECF 3), but his 2019 parole decision

cites several disciplinary violations as well as the nature of his instant offense as reasons for the

denial (Dkt. 8-15, at ECF 11). In any event, “prisoners in New York possess no liberty interests

in parole,” and there is no indication that Petitioner’s denial of parole was based on “arbitrary or

constitutionally impermissible reasons” that would raise special concern. See Renis v. Thomas,

No. 02-CV-9256 (DAB) (RLE), 2003 WL 22358799, at *4 (S.D.N.Y. Oct. 16, 2003) (internal

quotation marks omitted) (citing, inter alia, Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001)).

Overall, upon careful consideration of all the circumstances of this case, the Court does not

find that this is the rare, exceptional case where immediate release on bail is warranted, particularly

when the Court also considers that immediate release is not necessary to make the habeas remedy

effective with regard to what appears to be Petitioner’s strongest claim, his appellate-delay claim.11

Accordingly, Petitioner’s motion for bail is denied.

II. Motion to Issue Writ Forthwith

Petitioner moves for issuance of a writ of habeas corpus “forthwith” pursuant to 28 U.S.C.

§ 2243. (Dkt. 6, at ECF 1.) That statute provides, among other things, that a court “entertaining

an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing

the respondent to show cause why the writ should not be granted, unless it appears from the

application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243

(paragraph 1). The statute requires a response from respondent “within three days unless for good

cause additional time, not exceeding twenty days, is allowed.” Id. (paragraph 2). Once respondent

responds, “a day shall be set for hearing, not more than five days after the return unless for good

cause additional time is allowed.” Id. (paragraph 4). “The court shall summarily hear and

determine the facts, and dispose of the matter as law and justice require.” Id. (paragraph 8).

11 Although the Court does not decide the likelihood of success of any claim in the petition

at this time, the Court notes that some of Petitioner’s claims other than the appellate-delay claim

appear to have been rejected in some form by at least one state court. For example, in denying

Petitioner’s CPL § 440.10 motion, the state trial court rejected claims of a constitutional speedy-

trial violation and ineffective assistance of counsel. (Dkt. 8-21, at ECF 3–8.) Additionally, in

denying Petitioner’s CPL § 460.50 bail motion, the state trial court rejected a claim that trial

counsel was ineffective for not objecting to the composition of the jury wheel. (Dkt. 8-17, at ECF

5–6.) With respect to any claim in Petitioner’s habeas petition “that was adjudicated on the merits

in State court proceedings,” the Court may not grant habeas relief on that claim unless its

adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d).

However, as courts in this district have observed, “[o]beying the explicit directives of

section 2243 is not possible.” In re Habeas Corpus Cases, 216 F.R.D. 52, 54 (E.D.N.Y. 2003);

see also Kalu v. New York, No. 08-CV-4984 (NGG), 2009 WL 7063100, at *4 (E.D.N.Y. Sept.

15, 2009) (“[B]oth Congress and federal courts have recognized the impracticability of [section

2243], and the necessity for greater flexibility in determining the time period in which an answer

must be made.” (citations omitted)), report and recommendation adopted sub nom. Ndukwe v. New

York, 2010 WL 4386680, at *1 (E.D.N.Y. Oct. 28, 2010). Indeed, Petitioner has acknowledged as

much. (Dkt. 6, at ECF 1 (noting that “it is practically impossible to comply” with the literal dictates

of 28 U.S.C. § 2243).) Because Petitioner’s case is proceeding as expeditiously as possible, the

Court denies the motion for issuance of the writ forthwith.

III. Motion for Appointment of Counsel

“[T]here is no constitutional right to representation by counsel in habeas corpus

proceedings.” Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (internal quotation marks and

citations omitted). Nevertheless, a court may appoint counsel to a financially eligible habeas

petitioner under the CJA when “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).

Counsel must be appointed “if necessary for effective discovery” or “if an evidentiary hearing is

warranted,” but “appointment is otherwise discretionary.” Carter v. Fields, 19-CV-5364 (PKC),

2020 WL 5819899, at *18 (E.D.N.Y. Sept. 29, 2020) (citing Villafane v. Artus, 09-CV-5545 (SJF),

2011 WL 6835029, at *27 (E.D.N.Y. Nov. 17, 2011)); see also Rules Governing § 2254 Cases,

Rules 6(a), 8(c).

Given the nature of Petitioner’s habeas claims, the Court finds that counsel is not necessary

for effective discovery in this case, and that, as discussed below, an evidentiary hearing is not

warranted. Accordingly, the Court applies the standard set forth in Hodge v. Police Officers, 802

F.2d 58 (2d Cir. 1986), to determine whether discretionary appointment of counsel is merited. See

Thompson v. Griffin, No. 14-CV-1641 (DLI), 2017 WL 11511164, at *1 (E.D.N.Y. Mar. 16, 2017)

(“In deciding whether to appoint counsel for a habeas corpus petitioner, the Court utilizes the

standard set forth by the Second Circuit Court of Appeals for determining whether to appoint

counsel to indigent civil litigants under 28 U.S.C. § 1915.” (citation omitted)). Under this standard,

“the district judge should first determine whether the indigent’s position seems likely to be of

substance.” Hodge, 802 F.2d at 61. If this threshold showing is satisfied, the Court then considers

several factors: (1) the petitioner’s “ability to investigate the crucial facts”; (2) “whether

conflicting evidence implicating the need for cross-examination will be the major proof presented

to the fact finder”; (3) the petitioner’s “ability to present the case”; (4) “the complexity of the legal

issues”; and (5) “any special reason in that case why appointment of counsel would be more likely

to lead to a just determination.” Id. at 61–62.

Even assuming that Petitioner has at least one claim—his appellate-delay claim—that is

likely to be of substance, the other factors, on balance, do not weigh in favor of appointing counsel.

The issue of appellate delay is discrete and not particularly complex either factually or legally, and

Petitioner has so far demonstrated an ability to present the issues competently. Additionally, the

state-court record, for the most part, speaks for itself, and the issues do not appear to turn on

questions of credibility or conflicting evidence that implicate the need for cross-examination.

Lastly, appointing counsel will inevitably delay the proceedings, in direct contravention of

Petitioner’s apparent desire to move the proceedings along expeditiously in light of the remaining

length of his sentence. In short, the Court is unconvinced that appointing counsel in this case, and

at this point, will lead to a more just result. The motion for appointment of counsel is accordingly

denied.

IV. Other Requests

Finally, the Court addresses several requests made in Petitioner’s Memorandum of Law

supporting his bail motion and replying to Respondent’s opposition. (Dkt. 14.) Most notably,

Petitioner requests an evidentiary hearing to investigate his claim of appellate delay, asserting that

such delays are “systemic.” (Id. at ECF 15.) The Court has an obligation to determine whether

the materials submitted warrant an evidentiary hearing. Rules Governing § 2254 Cases, Rule 8(a).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), if a petitioner “has

failed to develop the factual basis of a claim in State court proceedings,” a federal court may not

hold an evidentiary hearing on the claim except in very narrow circumstances. See 28 U.S.C.

§ 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of

a claim is not established unless there is [a] lack [of] diligence, or some greater fault, attributable

to the prisoner or the prisoner’s counsel.” Michael Williams v. Taylor, 529 U.S. 420, 432 (2000);

accord Fulton v. Graham, 802 F.3d 257, 266 (2d Cir. 2015). Given that the record does not show

a lack of diligence attributable to Petitioner with respect to his claim of appellate delay, the

AEDPA does not bar an evidentiary hearing on that claim. Nevertheless, the Court finds that an

evidentiary hearing is unwarranted, particularly because there do not appear to be any facts in

dispute that would require a hearing, and Petitioner provides no basis to find that a hearing is

needed. Thus, the request for an evidentiary hearing is denied.

Petitioner also requests a declaration that the state corrective process is “ineffective” under

28 U.S.C. § 2254(b)(1)(B(ii) and that his failure to exhaust is excused. (Dkt. 14, at ECF 1.) The

Court need not, and does not, decide that issue at this juncture. Furthermore, Petitioner requests

that in the event his state trial court conviction is ultimately affirmed, he be able to serve the

remainder of his sentence on parole. (Id.) Petitioner points to no authority that authorizes the

Court to grant such relief, and the Court denies that request.

Finally, Petitioner requests that the City and State of New York and/or their agencies be

ordered to amend any contract with Appellate Advocates so that the organization is paid at least

$150 per hour, and Appellate Advocates accordingly be ordered to “hire more attorneys to

accommodate their huge caseload.” (Id.) To be sure, indigent persons may not be “singled out by

the State and denied meaningful access to the appellate system because of their poverty.” Ross v.

Moffit, 417 U.S. 600, 611 (1974); see also Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“There can

be no equal justice where the kind of trial a man gets depends on the amount of money he has.”).

But Petitioner provides no evidence that he, or any other indigent person, has been singled out by

the State and purposefully denied meaningful access to the appellate system. Nor does the Court

have a basis to conclude that the remedy requested is in any way warranted or appropriate, or that

the Court has the authority to grant such relief. The request is therefore denied.

V. Certificate of Appealability

The denial of bail pending determination of a habeas petition is appealable under the

collateral order doctrine, but a certificate of appealability under 28 U.S.C. § 2253 is required.

Grune, 913 F.2d at 44. Given the Court’s determination that Petitioner, at best, might be entitled

to a conditional writ as habeas relief in this matter, the Court declines to issue a certificate of

appealability. The Court does not find that reasonable jurists could debate that the motion for bail

“should have been resolved in a different manner” or that it raises issues “adequate to deserve

encouragement to proceed further.” See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

CONCLUSION

Petitioner’s motion for preliminary injunction, which the Court has construed as a motion

for bail pending the determination of his habeas petition, is denied. The motion for issuance of

the writ forthwith is denied. The motion for appointment of counsel under the Criminal Justice

Act, 18 U.S.C. § 3006A, is denied, and the requests in Petitioner’s Memorandum of Law

supporting his bail motion, including the request for an evidentiary hearing, are denied. No

certificate of appealability with respect to the denial of the motion for bail shall issue.

The Court defers ruling on the merits of Petitioner’s habeas claims until they have been

fully briefed. Pursuant to the Court’s November 11, 2020 Order, Respondent shall have until

January 15, 2021, to file a return to the petition, serve a copy of the return on Petitioner, and file

the original with the Court along with proof of service. Petitioner shall have twenty-one (21) days

from receipt of a copy of the return to file a reply, if any. The parties in their filings may submit

any additional evidence bearing on the issue of appellate delay, particularly the reason for such

delay.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: January 4, 2021

Brooklyn, New York