Damato v. Murphy

Filing 55

PRISCS - RULING AND ORDER denying 39 Motion to Appoint Counsel ; denying 44 Motion for Summary Judgment; denying 45 Motion to produce computer discs ; denying 47 Motion to Appoint Counsel ; denying 48 Motion to Appoint Counsel ; granting [4 9] Motion for Copy(s); denying 51 Motion to direct DOC ; denying 52 Motion to Seal; denying 52 Motion for Custody of rough discs; denying 53 Motion to Appear. The Clerk is directed to send petition a copy of the docket sheet with this ruling. Signed by Judge William I. Garfinkel on 1/21/09. (Corriette, M.)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GARY DAMATO v. WARDEN MURPHY RULING AND ORDER Petitioner has filed nine motions in this habeas action. I. Motions for Appointment of Counsel [docs. ##39, 47, 48] Plaintiff seeks appointment of counsel in this habeas corpus action. He argues that the court is denying his constitutional As the court previously PRISONER Case No. 3:08cv855(SRU)(WIG)

rights by failing to appoint counsel.

explained, there is no constitutional right to counsel in a habeas corpus action. Appointment of counsel in a habeas corpus Wright v. West, 505 U.S. 277, 293

action is discretionary.

(1992); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993). The court should

exercise its discretion to appoint counsel only when the interests of justice so require, unless an evidentiary hearing is necessary. See Rule 8(c) of the Rules Governing Section 2254

Cases in the United States District Courts; 18 U.S.C. § 3006A(a)(2)(B). In its December 9, 2008 ruling granting petitioner's motion for articulation, the court stated that it was unable to determine whether justice required that it exercise discretion 1

and appoint counsel until the respondent filed his response to the court's order to show cause. filed. The response has not yet been

Petitioner, however, has ignored the court's statements

and filed additional motions for appointment of counsel. After reviewing the response to the order to show cause and any reply that petitioner may file, the court will determine whether an evidentiary hearing is required. will appoint counsel. If so, the court

Petitioner need not file any more motions Plaintiff's motions for appointment

for appointment of counsel.

of counsel [docs. ## 39, 47, 48] are DENIED. II. Motions relating to Computer Discs and Transcripts [docs. ##45, 52] In the ruling on petitioner's motion for articulation, the court also explained why he was denied discovery of computer discs and rough drafts of the trial transcript. See Doc. #43.

Petitioner has filed two more motions seeking these same materials. Although he states that a state court employee has

informed him that the materials exist and are in possession of the state court, he has not indicated what he expects to discover nor has he provided specific evidence relating the materials he seeks to his claims before this court. [docs. ##45, 52] are DENIED. III. Motion for Copies [doc. #49] Petitioner seeks a free copy of the docket sheet. He states Petitioner's motions

that he mailed motions without making copies because he was 2

unable to go to the prison library/resource center. motion [doc. #49] is GRANTED.

Petitioner's

The Clerk is directed to mail

petitioner a copy of the docket sheet with this ruling. Petitioner is on notice, however, that the court will not provide him a free copy of the docket sheet every time he files motions. Most of petitioner's motions consist of one or two While making photocopies

handwritten pages with no exhibits.

would be easier, the court cannot discern why petitioner could not copy these simple motions by hand. IV. Motions for Summary Judgment and to Appear [doc. ##44, 53] Although captioned a motion for summary judgment, petitioner seeks sanctions in the form of entry of judgment in his favor because the respondent failed to timely file a response to the order to show cause. At the time he filed this motion, the

respondent had been granted an extension of time to file his response. That time had not yet expired. Thus, there is no

factual basis for petitioner's motion. Rule 56, D. Conn. L. Civ. R., sets forth the requirements for filing a motion for summary judgment. If petitioner were

attempting to file a motion for summary judgment, he has not submitted the required documents with his motion. The motion for

summary judgment [doc. #44] is DENIED and petitioner's motion to appear and argue the merits of his motion [doc. #53] is DENIED as moot. 3

V.

Motion for Library Access [doc. #51] Petitioner seeks an order for the staff at Cheshire

Correctional Institution to place him on the list to use the prison library/resource center. to legal and copy materials. He states that he needs access

Although he states that he has not

been allowed to go to the library in the eight weeks he has been at Cheshire Correctional Institution, petitioner does not indicate whether his name has been added to the list of inmates requesting library access. The fact that he has not yet been

called to use the library does not necessarily mean that his request has been ignored. In addition, until the response to the

order to show cause is filed, the court can discern no legal issues requiring research. DENIED without prejudice. VI. Conclusion Petitioner's motions for appointment of counsel [docs. ## 39, 47, 48] and motions relating to computer discs and transcripts [docs. ##45, 52] are DENIED. Petitioner's motion for Petitioner's motion [doc. #51] is

summary judgment [doc. #44] is DENIED and his motion to appear in court [doc. #53] is DENIED as moot. His motion for access to the

library [doc. #51] is DENIED without prejudice. Petitioner's motion for a copy of the docket sheet [doc. #49] is GRANTED. The Clerk is directed to send petitioner a copy

of the docket sheet with this ruling. 4

SO ORDERED at Bridgeport, Connecticut this January 2009.

21st

day of

/s/ William I. Garfinkel WILLIAM I. GARFINKEL UNITED STATES MAGISTRATE JUDGE

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