Opinion
No. 05 Civ. 3009 (RMB)(KNF).
February 3, 2006
MEMORANDUM and ORDER
Petitioner has made an application for a writ of habeas corpus. He alleges that his confinement by the state of New York is unlawful because the evidence presented at his trial was insufficient to establish his guilt of the charged crimes beyond a reasonable doubt. As a consequence, the petitioner maintains that he was deprived of his Fifth, Sixth and Fourteenth Amendment rights to due process of law. The petitioner also contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated because probable cause for his arrest did not exist. Moreover, according to the petitioner, the trial court erred when it determined to sentence him in accordance with the statutory provisions applicable to a persistent violent felony offender. Petitioner has requested that the Court appoint counsel to assist him in obtaining the relief he seeks through the instant application for a writ of habeas corpus. For the reasons that follow, petitioner's request that counsel be appointed to assist him 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. April 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).
The Court has reviewed the petition and the answer submitted on behalf of the respondent and has determined that a hearing does not appear to be necessary. It appears to the Court that petitioner's application for a writ of habeas corpus may be addressed by analyzing the written submissions made by the parties as well as the record generated during proceedings held in the state courts. Accordingly, petitioner's request for appointed counsel is denied.
SO ORDERED.