Akassy v. Kirkpatrick

Filing 79

OPINION AND ORDER re: 75 MOTION FOR SUBPOENA TO COMPEL THE NEW YORK DISTRICT ATTORNEY'S OFFICE TO PRODUCE PETITIONER'S OFFICIAL PRESS CREDENTIALS AND NEWS ASSIGNMENT VIDEO TAPES. filed by Hugues-Denver Akassy. Petitioner's mo tion for discovery (Doc. No. 75) is DENIED. The Clerk of Court is respectfully directed to mail a copy of this Opinion and Order to the pro se Petitioner. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 1/8/19) (yv) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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HUGUES-DENVER AKASSY,

Petitioner,

01/08/2019

OPINION AND ORDER
1:16-cv-7201 (LAP) (KHP)

-againstMICHAEL KIRKPATRICK,
Respondent.
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KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

Petitioner Hugues-Denver Akassy, proceeding pro se, filed a petition for a writ of habeas
corpus (the “Petition”) pursuant to 28 U.S.C. § 2254, challenging his 2011 conviction in New
York State Supreme Court for first-degree rape, three counts of second-degree harassment, and
two counts of third-degree stalking. On December 7, 2018, the undersigned issued a Report
and Recommendation recommending that the Petition be dismissed in its entirety. (Doc. No.
73.) In a letter-motion postmarked December 24, 2018 (but dated December 4, 2018),
Petitioner requested that this Court issue a subpoena commanding the New York County
District Attorney’s Office to produce Petitioner’s “official press credentials and news
assignment video tapes.” (Doc. No. 75.) Petitioner appears to seek the production of these
items in order to supplement his claims that prosecutors engaged in misconduct by (1)
suggesting to the jury that Petitioner was not actually a journalist, but only “pretend[s]” to be
one; and (2) making false statements to the media and in court documents that Petitioner was,
among other things, a “con man,” a “con artist,” and a “fake French journalist.” (See Doc. No.
73.) For the reasons set forth below, Petitioner’s motion is DENIED.
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DISCUSSION
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997) (internal
quotation marks and citation omitted). Rather, a district court may permit a petitioner to take
discovery upon the petitioner’s showing of “good cause” for the same. See Fed. R. Governing
§ 2254 Cases 6(a); Hirschfeld v. Comm’r of Div. of Parole, 215 F.R.D. 464, 465 (S.D.N.Y. 2003).
Good cause exists “where specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief . . . .” Bracy, 520 U.S. at 908-09 (internal quotation marks and citation omitted). A habeas
petitioner thus “bears a heavy burden in establishing a right to discovery.” Hodge v. Griffin, No.
13-cv-1977 (LTS) (JCF), 2013 WL 5231473, at *1 (S.D.N.Y. July 19, 2013) (internal quotation
marks and citations omitted). A court may deny a petitioner’s request for discovery “where the
petitioner provides no specific evidence that the requested discovery would support his habeas
corpus petition.” Id. (quoting Hirschfeld, 215 F.R.D. at 465).
Here, Petitioner seeks discovery solely to establish that he was, in fact, a journalist prior
to his arrest. Even if true, however, this fact would not aid Petitioner in demonstrating an
entitlement to habeas relief. Under the AEDPA, a state prisoner can obtain federal habeas
relief only by showing that the state court’s decision was either “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or resulted in a decision that was based on an unreasonable determination of the facts
presented to the state court. 28 U.S.C. § 2254(d)(1)-(2). Under the “clearly established” law
governing prosecutorial misconduct claims, “while the State has a duty to refrain from
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improper methods calculated to produce a wrongful conviction, such methods will warrant
habeas relief only if they so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Jackson v. Conway, 763 F.3d 115, 146 (2d Cir. 2014)
(internal quotation marks and citations omitted). Moreover, the district court “must consider
the record as a whole when making this determination, because even a prosecutor's
inappropriate or erroneous comments or conduct may not be sufficient to undermine the
fairness of the proceedings when viewed in context.” Id. A finding that Petitioner was a
journalist prior to his arrest would not disturb this Court’s reasons (found at pages 40-43 of its
Report and Recommendation) for recommending that Petitioner’s aforementioned
prosecutorial misconduct claims be denied as meritless. Petitioner would still be required to
show that any false statement made by the prosecutors to the court or to the media concerning
his profession constituted misconduct and that such misconduct so infected his trial with
unfairness as to render his conviction a denial of due process. Petitioner has had ample
opportunity to attempt to make these required showings and has failed to do so. Thus,
Petitioner has not demonstrated good cause for the requested discovery.
Petitioner additionally requests in his discovery motion that this Court return to him
certain property seized pursuant to search warrants issued by the state court. However, a
federal habeas proceeding is not the proper forum in which to request the return of property
seized in connection with a state conviction. This Court may review claims for habeas relief
only on the ground that a petitioner’s conviction violated the Constitution, laws, or treaties of
the United States. 28 U.S.C. § 2254(a). Accordingly, Petitioner’s request is improperly raised in
this proceeding.
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CONCLUSION
For all of the foregoing reasons, Petitioner’s motion for discovery (Doc. No. 75) is
DENIED. The Clerk of Court is respectfully directed to mail a copy of this Opinion and Order to
the pro se Petitioner.
SO ORDERED.
Dated: January 8, 2019
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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