# Hayon v. Reardon

> District Court, E.D. New York · January 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10305463

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305463

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
JOSEPH HAYON,

Petitioner,
MEMORANDUM & ORDER
- against - 20-CV-4668 (PKC)

PATRICK REARDON,

Respondent.
-------------------------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305463. Public record. Not legal advice.