Payton v. Racette

Filing 18

ORDER granting in part 14 Motion for Discovery. For the foregoing reasons, Petitioner's motion for discovery is GRANTED IN PART. Rather than grant Petitioner permission to serve written interrogatories, however, Respondent is hereby ORDERED to obtain an affidavit from Mr. Bongiorno that addresses the allegations in the Petition and the questions raised in Petitioner's interrogatories. Respondent must file such affidavit with the Court and serve a copy on Petitioner within twenty (20) days of the date of this Order. Petitioner may file a supplemental reply within sixty (60) days of his receipt of Mr. Bongiorno's affidavit. So Ordered by Judge Joanna Seybert on 7/31/12. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
DOUGLAS PAYTON,
Petitioner,
ORDER
11-CV-1260(JS)

-againstSTEVEN RACETTE, Superintendent,

Respondent.
---------------------------------------X
APPEARANCES
For Petitioner:
Douglas Payton, pro se
07A1359
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902
For Respondent:

Rosalind C. Gray, Esq.
Suffolk County District Attorney’s Office
Criminal Courts Building
200 Center Drive
Riverhead, NY 11901

SEYBERT, District Judge:
On March 13, 2011, Douglas Payton (“Petitioner”) filed
a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 on the grounds that: (1) his plea allocution was
“legally insufficient to support his conviction on the sex crime
charged in counts one through three” (Pet. ¶ 12(A)); (2) his
plea was not knowing and voluntary (Pet. ¶ 12(B)); and (3) he
received ineffective assistance of counsel in connection with
his decision to plead guilty (Pet. ¶ 12(C)).

Presently pending

before the Court is Petitioner’s motion for discovery.

(Docket

Entry 14.)

For the following reasons, Petitioner’s motion is

GRANTED IN PART.
BACKGROUND
Upon

receipt

of

the

Petition,

the

Court

ordered

Respondent to show cause by filing a return to the Petition on
or before April 19, 2011, why a writ of habeas corpus should not
be issued.
the

(Docket Entry 3.)

petitioner

asserts

The Order also stated that:

ineffective

assistance

of

“If

counsel,

respondent shall obtain an affidavit of the attorney in question
addressing the merits of petitioner’s claims.”

(Order to Show

Cause ¶ 5.)
After being granted two extensions of time, Respondent
filed

its

Return

on

June

16,

2011.

(Docket

Entry

8.)

Notwithstanding the fact that Petitioner asserted an ineffective
assistance of counsel claim, Respondent failed to provide the
Court

with

an

affidavit

from

Petitioner’s

defense

counsel,

stating that “the People attempted to obtain an affidavit from
defense counsel Peter Bongiorno, Esq. of Mineola[,] New York,”
but “Mr. Bongiorno respectfully declined to submit an affidavit
and

relies

on

the

plea

transcript

to

demonstrate

provided effective assistance of counsel.”

that

he

(Resp’t Return ¶

46.)
Petitioner, after receiving two extensions of time,
filed his Reply on August 8, 2011 (Docket Entry 12), and on

2

September 7, 2011, Petitioner filed a motion seeking permission
to serve written interrogatories on Mr. Bongiorno (Docket Entry
14).

Respondent has not opposed this motion.
DISCUSSION
“A habeas petitioner, unlike the usual civil litigant

in federal courts, is not entitled to discovery as a matter of
ordinary course.”

Bracy v. Gramley, 520 U.S. 899, 904, 117 S.

Ct.

Ed.

1793,

138

L.

2d

97

(1997).

“Rather,

discovery

is

allowed only if the district court, acting in its discretion,
finds ‘good cause’ to allow it.”

Ferranti v. United States, ---

F. App’x ----, 2012 WL 1701524, at *3 (2d Cir. May 16, 2012)
(citing Bracy, 520 U.S. at 904).
satisfied

“where

specific

The “good cause” standard is

allegations

before

the

court

show

reason to believe that the petitioner may, if the facts are
fully

developed,

is . . . entitled

be
to

able

to

relief.”

demonstrate

Bracy,

520

U.S.

that
at

he

908-09

(alteration in original) (internal quotation marks and citation
omitted).

“The

district

court

enjoys

‘broad

discretion’

to

determine whether discovery is warranted in a habeas proceeding,
and

its

decision

discretion.”

will

be

overturned

only

if

it

abused

its

Ferranti, 2012 WL 1701524, at *3 (citing Nieblas

v. Smith, 204 F.3d 29, 31 (2d Cir. 1999)).
Petitioner is seeking to serve written interrogatories
on

his

defense

counsel,

Mr.

Bongiorno,

3

to

establish

what

investigation, if any, he performed prior to advising Petitioner
to plead guilty.

(Pet. Aff. in Support of Mot. ¶¶ 5-6.)

The

Court finds that there is good cause for the discovery requested
to prove Petitioner’s claim.
First, to prevail on a claim of ineffective assistance
of counsel in connection with a guilty plea, Petitioner must
show that:

“1) counsel’s performance fell below an objective

standard of reasonableness according to prevailing professional
norms; and 2) it is reasonably likely that prejudice occurred”-i.e., “that were it not for counsel’s errors, he would not have
pled guilty and would have proceeded to trial.”

United States

v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005).
Here,
adequately

Petitioner

investigate

asserts

Petitioner’s

that

counsel

defenses

and

failed
to

to

review

possibly exculpatory evidence in possession of the government
prior to advising Petitioner to plead guilty and seeks to obtain
from

Mr.

Bongiorno

information

investigation and review.
Entry 14, at 15-19).

regarding

the

extent

of

his

(See Proposed Interrogatories, Docket

The Court finds that this information is

needed for Plaintiff to fully develop his ineffective assistance
of counsel claim.

See Jones v. Wood, 114 F.3d 1002, 1008-10

(9th Cir. 1997) (finding good cause for discovery where the
petitioner identified the specific material he needed to argue
his ineffective assistance claim and there was never any hearing

4

on the ineffective assistance of counsel claim at state court
level).
Second,

the

Court

previously

found

this

material

relevant and necessary to Petitioner’s claim, as it had ordered
Respondent to obtain an affidavit from Mr. Bongiorno and submit
it with its Return.

Finally, Respondent does not object to

Petitioner’s request.
CONCLUSION
For

the

foregoing

reasons,

discovery is GRANTED IN PART.

Petitioner’s

motion

for

Rather than grant Petitioner

permission to serve written interrogatories, however, Respondent
is hereby ORDERED to obtain an affidavit from Mr. Bongiorno that
addresses

the

allegations

in

the

Petition

raised in Petitioner’s interrogatories.

and

the

questions

See 28 U.S.C. § 2246.

Respondent must file such affidavit with the Court and serve a
copy on Petitioner within twenty (20) days of the date of this
Order.

Petitioner may file a supplemental reply within sixty

(60) days of his receipt of Mr. Bongiorno’s affidavit.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

July 31, 2012
Central Islip, New York

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