Roque v. Lee
MEMORANDUM AND ORDER denying 8 Motion for Reconsideration ; denying 14 Motion to Appoint Counsel ; denying 17 Motion to Vacate ; denying 17 Motion to Stay: For the reasons stated in the attached Memorandum and Order, petitioner's mo tions for appointment of counsel and for a stay and abeyance (Doc. Nos. 8, 14, 17) are DENIED. Petitioner is granted leave to amend his petition to delete all unexhausted claims and to proceed only with the exhausted claims. Any such amendment must be made within thirty (30) days, on or before April 10, 2013.The Clerk of the Court is directed to mail a copy of this order to petitioner pro se and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 3/12/2013. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against WILLIAM LEE,
ROSLYNN R. MAUSKOPF, United States District Judge.
Before the Court are three motions filed by petitioner pro se, Darwin Roque. First, in a
letter filed July 31, 2012, petitioner urges this Court to reconsider its Order dated July 11, 2012,
denying petitioner’s requests to appoint counsel and to issue a stay and abeyance. (Doc. No. 8.)
Second, petitioner filed a new motion on September 17, 2012, again requesting that the Court
appoint counsel to represent him. (Doc. No. 14.) Finally, on November 8, 2012, petitioner
moved to vacate the Order dated July 11, 2012. (Doc. No. 17.) For the reasons that follow,
these motions are DENIED.
Appointment of Counsel
On July 11, 2012, this Court denied petitioner’s first request to appoint counsel after a
full consideration of the factors in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). (See
Doc. No. 7 at 5.) The Court did, however, permit petitioner “to re-apply for appointed counsel
should circumstances warrant at a later date.” (Id.) As an initial matter, the Court notes that
petitioner has filed two motions seeking the same relief. Both the motion filed July 31, 2012
(Doc. No. 8), and the motion filed September 14, 2012 (Doc. No. 14), request the appointment of
counsel. The Court therefore consolidates these motions and considers them below.
As this Court recognized in its original Order, a habeas corpus petitioner has no
constitutional right to counsel. See Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993). Although
the Court has discretion to appoint counsel for petitioner pursuant to 28 U.S.C. § 1915(e)(1), see
In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984), appointment of counsel is not
warranted as petitioner has again failed to demonstrate the requisite need and merit of his claims.
See, e.g., Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). Petitioner
has failed to adduce any additional facts, circumstances, legal authority sufficient to justify the
appointment of counsel. Moreover, the Court notes that the Jeffrey Deskovic Foundation for
Justice is currently performing an investigation on petitioner’s behalf. (See Doc. No. 8 at 2.) As
such, the Court sees no reason to depart from its prior decision and declines to appoint counsel
Stay and Abeyance
Petitioner also asks the Court to revisit the portion of its Order declining to grant a stay
and abeyance to allow petitioner to pursue additional claims in state court. Again, petitioner has
filed two motions seeking identical relief.1 (See Doc. Nos. 8, 17.) First, petitioner seeks
additional time for the Jeffrey Deskovic Foundation for Justice to investigate his case and
determine whether it will represent him. Second, petitioner offers new arguments in support of
his claim for ineffective assistance of trial counsel.2 Finally, petitioner presents new grounds for
his claim for ineffective assistance of appellate counsel.3
As a technical matter, the motion filed November 8, 2012 (Doc. No. 17), was ostensibly filed pursuant to Fed. R.
Civ. Pro. 60(b), while the motion filed July 31, 2012 (Doc. No. 8), seeks “reconsideration in . . . assigning counsel.”
(Doc. No. 8 at 13.) Assuming that Rule 60 was the proper vehicle for such a motion, petitioner fails to make a
showing sufficient to grant relief. See Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011).
In light of petitioner’s pro se status, however, the Court reads these motions liberally to raise the strongest
arguments they suggest. See Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). Accordingly, the Court construes
both motions as successive requests pursuant to the leave to re-apply granted in the Order of July 11, 2012.
Petitioner’s new arguments include trial counsel’s alleged failure to (1) communicate various plea offers; (2)
include petitioner in an in camera meeting with the judge, the prosecutor, and counsel for an individual who
In Rose v. Lundy, 455 U.S. 509 (1982), U.S. Supreme Court held that a federal district
court may not entertain a habeas petition that contains both exhausted and unexhausted claims.4
Id. at 510. This doctrine is “principally designed to protect the state courts’ role in the
enforcement of federal law and prevent disruption of state judicial proceedings.” Id. at 518. For
this reason, the Court was quite clear that “‘it would be unseemly in our dual system of
government for a federal district court to upset a state court conviction without an opportunity to
the state courts to correct a constitutional violation . . . .’” Id. (quoting Darr v. Burford, 339 U.S.
200, 204 (1950)). The Supreme Court’s opinion in Lundy “provide[d] a simple and clear
instruction to potential litigants: before you bring any claims to federal court, be sure that you
first have taken each one to state court.” 455 U.S. at 520.
“Because granting a stay effectively excuses a petitioner’s failure to present his claims
first to the state courts,” a federal district court may grant a stay and abeyance only where (1)
there was “good cause” for a petitioner’s failure to exhaust his claims and (2) the unexhausted
claims are not “plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005). Moreover,
“district courts should place reasonable time limits on a petitioner’s trip to state court and back.”
Id. at 278 (citing Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). “And if a petitioner
allegedly confessed to petitioner’s crime; (3) conduct a pre-trial investigation of witnesses; (4) advise petitioner
about the consequences of waiving certain constitutional rights; (5) request sanctions for destroying evidence; (6)
object to allegedly improper testimony; and (7) compare blood and print evidence. (See Docs. 8, 17.)
These arguments include appellate counsel’s alleged failure to obtain the complete record and to contest (1) the
trial court’s failure to permit trial counsel to confront a witness about the victim’s gang affiliation; (2) petitioner’s
waiver of his right to a speedy trial; and (3) the failure to charge the grand jury on justification. (See Doc. Nos. 8,
When the Court decided Lundy, there was no statute of limitations governing the filing of federal habeas petitions.
“As a result, petitioners who returned to state court to exhaust their previously unexhausted claims could come back
to federal court to present their perfected petitions with relative ease.” Rhines v. Weber, 544 U.S. 269, 274 (2005)
(citing Slack v. McDaniel, 529 U.S. 473, 486 (2000)). This changed with the enactment of the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) in 1996.
engages in abusive litigation tactics or intentional delay, the district court should not grant him a
stay at all.” Id.
In its previous Order, this Court held that petitioner had failed to show any cause for his
failure to exhaust his state law claims. (See Doc. No. 7 at 3-4.) This finding was predicated on
the recognition that “[e]ach of the grounds for his proposed 440 motion [we]re based on facts
that he has known or should have known long before bringing this petition, since they occurred
either during his trial . . . or before he filed his leave to appeal to the New York Court of Appeals
. . . .” (Id. at 3.) Because the basis for petitioner’s claims had always been evident from the
record, the Court held that petitioner could not show good cause for his failure to exhaust. (Id.)
The Court again adheres to this reasoning.
Assuming arguendo that petitioner’s claims are not plainly meritless, petitioner has not
provided this Court with any persuasive reason to revisit its earlier ruling. Petitioner urges that
“good cause” exists because he has been “learning, studying, and investigating his case with
intentions on proving that he is innocent.” (Doc. No. 8 at 5.) However, apart from alleging
conspiracy on the part of the State and ineffectiveness on the part of his lawyers, petitioner has
provided no explanation that excuses his failure to pursue his claims in state court.5 (See id. at
6.) Certainly, petitioner has provided no evidence to contradict the Court’s conclusion that all of
petitioner’s claims were discernible – or should have been discernible – at the time the original
petition was filed.
Conversely, it appears that petitioner completely disregarded the requirement that he
present each claim in state court before seeking federal review. The petition originally filed on
March 3, 2012, is replete with admissions that state review of his claims either was still pending
Although petitioner suggests that delays in obtaining necessary materials hindered the filing of his habeas petition,
this reason is irrelevant because it fails to explain why petitioner failed to seek relief in state court.
or had not been sought. (See (Pet. (Doc. No. 1) at 4-15.) Even if petitioner initially
misunderstood the exhaustion requirement, his subsequent actions have further frustrated state
review of his claims.6 On March 29, 2012, petitioner withdrew the writ of error coram nobis he
filed in the New York State Supreme Court, Appellate Division, on January 6, 2012. (See Doc.
No. 8. at 3.) Moreover, although petitioner indicated in his petition that a state C.P.L. § 440.10
motion raising other unexhausted claims was “forthcoming” (Pet. at 10), there is no indication
that any such motion was ever filed.
In sum, the Court finds that petitioner has failed to demonstrate good cause for his failure
to exhaust his claims in state court and again declines to grant a stay.7 However, because
petitioner has presented a mixed petition and a stay and abeyance is inappropriate, the Court will
permit petitioner to delete the unexhausted claims and to proceed with solely with the exhausted
claims should he wish to pursue that route. Cf. Rhines, 544 U.S. at 278.
That petition also states that “[o]n January 6, 2012, petitioner filed a post-conviction motion (writ of error coram
nobis) with the state appellate court, thus stopping the clock until such time as the post-conviction motions are
decided.” (Pet. at 17 (emphasis added).) “Just as pro se petitioners have managed to use the federal habeas
machinery, so too should they be able to master th[e] straightforward exhaustion requirement.” Lundy, 455 U.S. at
520. Given petitioner’s clear understanding of the tolling provisions of 28 U.S.C. § 2244(d)(2), the Court finds it
unlikely that petitioner was ignorant of the requirement that he first exhaust his claims in state court.
The Court notes that any prejudice to petitioner concerning claims that may eventually arise from the investigation
by the Deskovic Foundation is mitigated by the fact that such claims might be permitted on a second and successive
petition if they meet the requirements of 28 U.S.C. § 2244(b)(2).
For the foregoing reasons, petitioner’s motions for appointment of counsel and for a stay
and abeyance (Doc. Nos. 8, 14, 17) are DENIED. Petitioner is granted leave to amend his
petition to delete all unexhausted claims and to proceed only with the exhausted claims. Any
such amendment must be made within thirty (30) days, on or before April 10, 2013.
The Clerk of the Court is directed to mail a copy of this order to petitioner pro se.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
March 12, 2012
ROSLYNN R. MAUSKOPF
United States District Judge
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