Murphy v. Warden of Attica Correctional Facility

Filing 34

ORDER. Petitioner will have to proceed with his 440.10 motion in state court. Moreover, according to respondent's letter dated December 23, 2020, there are no post-conviction applications currently pending in state court. To the extent petitione r has not done so already, he may need to file (or refile) his Section 440.10 motion in state court. Finally, petitioner's request for appointment of pro bono counsel (see Dkt. No. 31) is denied. As a general matter, there is no constitutional r ight to counsel in habeas corpus proceedings. The Criminal Justice Act ("CJA") provides that a court may appoint counsel to an indigent person when "the interests of justice so requires." 18 U.S.C. § 3006A(a)(2)(B), and as fu rther set forth in this Order. The Court has considered these factors and finds that appointment of counsel is not warranted at this time because there is not a sufficient basis to determine that the petition has merit. Notably, petitioner's mot ion for a stay of the proceedings while he exhausts certain state remedies is currently pending before the Court, and the outcome of that motion may alter the proceedings going forward. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 4/27/2021). A copy of this Order has been mailed to: Mr. Donnelle Murphy, Inmate No. 15-A-2721, Collins Correctional Facility, P.O. Box 340, Collins, New York 14034-0340. (rjm)

4/27/21
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DONELLE MURPHY,
:
:
Petitioner,
:
:
-against:
:
WARDEN OF ATTICA
:
CORRECTIONAL FACILITY,
:
:
Respondent.
:
:
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ORDER
20-CV-3076 (PAE) (JLC)

JAMES L. COTT, United States Magistrate Judge.
By letter dated April 22, 2021, petitioner requests confirmation that his last
submission was received by the Court and seeks to consolidate his state court
motion with this habeas proceeding. Dkt. No. 33. The Court confirms that it has
received petitioner’s December 11, 2020 letter and a copy of his section 440.10
motion papers. Dkt. No. 31. However, the Court has no legal authority to
consolidate a motion that is before the state court with a habeas petition pending in
federal court. Accordingly, petitioner will have to proceed with his 440.10 motion in
state court.
Moreover, according to respondent’s letter dated December 23, 2020, there
are no post-conviction applications currently pending in state court. To the extent

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petitioner has not done so already, he may need to file (or refile) his Section 440.10
motion in state court.
Finally, petitioner’s request for appointment of pro bono counsel (see Dkt. No.
31) is denied. As a general matter, there is no constitutional right to counsel in
habeas corpus proceedings. The Criminal Justice Act (“CJA”) provides that a court
may appoint counsel to an indigent person when “the interests of justice so
requires.” 18 U.S.C. § 3006A(a)(2)(B). In deciding whether to exercise its discretion
to appoint counsel under the CJA, courts in this Circuit consider the same factors as
those applicable to requests for pro bono counsel made by civil litigants. See e.g.,
Zimmerman v. Burge, 492 F. Supp. 2d 170, 176 n.1 (E.D.N.Y. 2007) (citing Cooper v.
A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989)); In re Pizzuti, 10 Civ. 199, 2010
WL 4968244, at *1 (S.D.N.Y. Dec. 7, 2010). Those factors include the likelihood of
success on the merits, the complexity of the legal issues, and petitioner’ s ability to
investigate and present the case. See Cooper, 877 F.2d at 172; Hodge v. Police
Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). The Court has considered these factors
and finds that appointment of counsel is not warranted at this time because there is
not a sufficient basis to determine that the petition has merit. Notably, petitioner’s
motion for a stay of the proceedings while he exhausts certain state remedies is

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currently pending before the Court, and the outcome of that motion may alter the
proceedings going forward.
SO ORDERED.
Dated: April 27, 2021
New York, New York

A copy of this Order has been
mailed to:
Mr. Donnelle Murphy
Inmate No. 15-A-2721
Collins Correctional Facility
P.O. Box 340
Collins, New York 14034-0340

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