Valdez v. Stewart

Filing 23

OPINION AND ORDER re: 13 APPLICATION to Appoint Counsel pursuant to 18 U.S.C. 3006(A)(g) (Habeas Corpus Petition) filed by Denni Valdez. Accordingly, petitioner's motion for the appointment of counsel is granted. The Court's CJA cle rk is respectfully requested to select counsel for petitioner from the Court's CJA Habeas Panel. The Clerk of the Court is respectfully requested to mark Docket Item 13 closed. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 9/14/2018) Copies Mailed By Chambers. (ne) Transmission to Office of the Clerk of Court for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DENNI VALDEZ,
Petitioner,
-against-

1 7 Ci v . 4 12 1 ( KP F) (HB P)
OPINION
AND ORDER

ECKERT STEWART,
Respondent.

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PITMAN, United States Magistrate Judge:
Petitioner, an inmate in the custody of the New York
State Department of Corrections and Community Supervision,
commenced this habeas corpus proceeding pursuant to 28 U.S.C. §
2254, claiming that his conviction violated certain of his
federally protected rights.

By a motion dated October 7, 2017

(Docket Item 13), petitioner moves for the appointment of counsel
pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A.

For the

reasons set forth below, the motion is granted.
Petitioner was convicted in the Supreme Court of the
State of New York (New York County) upon his guilty plea to one
count of murder in the second degree.

Petitioner suffers from

development disabilities; reports concerning his competence to
proceed in state court indicated an IQ between 52 and 70.

On

direct appeal, petitioner argued that his plea was involuntary,
primarily due to his cognitive and communicative deficits.

The

Appellate Division affirmed petitioner's conviction, finding that
the claim of involuntariness was not preserved.
Valdez, 138 A.D.3d 464, 27 N.Y.S.3d 873

People v.

(1st Dep't 2016).

New York Court of Appeals denied leave to appeal.

The

People v.

Valdez, 27 N.Y.3d 1156, 62 N.E.3d 130, 39 N.Y.S.3d 390 (2016)
Except in circumstances that are not currently present
in this case, a petitioner for a writ of habeas corpus is not
entitled to the appointment of counsel as a matter of right.
Rather, to warrant the appointment of counsel, a petitioner must
make a showing as to four factors:
case,

"the merits of [petitioner's]

[petitioner's] ability to pay for private counsel,

[peti-

tioner's] efforts to obtain a lawyer, the availability of counsel, and the [petitioner's] ability to gather the facts and deal
with the issues if unassisted by counsel."
Co., 877 F.2d 170, 172

(2d Cir. 1989).

Cooper v. A. Sargenti

Of these,

"[t]he factor

which command[s] the most attention [is] the merits."

Id.;

accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203
(S.D.N.Y. Apr. 26, 1996)

(Batts, J.); see Berry v. Kerik, 366

F.3d 85, 88 (2d Cir. 2003).
Although the merits of the petition are far from clear,
I conclude that the circumstances of this case warrant the
appointment of counsel.

The Appellate Division's finding that

petitioner's claim was unpreserved presents a major hurdle for
petitioner because it would ordinarily give rise to a procedural

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bar that will prevent this Court from reaching the merits of his
claim.

However, review on the merits will not be precluded if

(1) the state procedural ground is not independent and adequate,
see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006); Monroe
v. Kuhlman, 433 F.3d 236, 241-42

(2d Cir. 2006); Cotto v. Her-

bert, 331 F.3d 217, 238-39 (2d Cir. 2003);

(2) there is cause for

and prejudice from petitioner's failure to assert his claims in
accordance with state procedural law or (3) a failure to consider
the claim would result in a fundamental miscarriage of justice.
Schlup v. Delo, 513 U.S. 298, 324-27 (1995); Coleman v. Thompson,
501 U.S. 722, 748-50

(1991); Harris v. Reed, 489 U.S. 255, 262

(1989); Green v. Travis, supra, 414 F.3d 288, 294

(2d Cir. 2005)

The principles relating to these exceptions are extremely complex
and difficult to understand.

Given this complexity, petitioner's

documented cognitive deficits and the additional fact that a
state prisoner ordinarily has a single opportunity to present a
2254 petition, I conclude that the interests of justice warrant
the appointment of counsel.
Accordingly, petitioner's motion for the appointment of
counsel is granted.

The Court's CJA clerk is respectfully

requested to select counsel for petitioner from the Court's CJA

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Habeas Panel.

The Clerk of the Court is respectfully requested

to mark Docket Item 13 closed.
Dated:

New York, New York
September 14, 2018
SO ORDERED

HENRY PITMAN
United States Magistrate Judge
Copy mailed to:
Mr. Denni Valdez
DIN 12-A-3546
Green Haven Correctional Facility
594 Rt. 216
Stormville, New York 12582-0010
Copy transmitted to:
Counsel for Respondent

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