Crumpler v. Khahaifa
Filing
10
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. Petitioner's motion to appoint counsel [#9] is denied with prejudice. Signed by Hon. Michael A. Telesca on 12/21/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAMON C. CRUMPLER,
Petitioner,
No. 10-CV-0819
DECISION AND ORDER
-vs-
S. KHAHAIFA, Superintendent,
Respondent.
I.
Introduction
Petitioner
pro
se
Lamon
C.
Crumpler
(“Crumpler”
or
“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on the basis that he is being detained in state custody in
violation
of
his
federal
constitutional
rights.
Crumpler
was
convicted on January 16 2009, in New York State County Court,
Niagara County, following a negotiated guilty plea to one count of
Assault in the Second Degree (N.Y. Penal Law (“P.L.”) § 120.05(2)).
II.
Factual Background and Procedural History
Crumpler’s conviction stems from an incident that occurred on
September 25, 2007, in Niagara County, in which Crumpler attempted
to forcibly steal property from Aaron Jackson (“Jackson”), and
intentionally injured Jackson with a knife. Petitioner was charged
with four offenses: two counts of Attempted Robbery in the First
Degree (P.L. §§ 110/160.15(1), (3)); Assault in the First Degree
(P.L. § 120.10(1)); and Criminal Possession of a Weapon in the
Third Degree (P.L. § 265.02(1)).
On February 13, 2008, Petitioner was brought to testify before
the grand jury wearing his prison uniform. Petitioner objected to
testifying while wearing prison attire, and he was removed and
returned to prison. The grand jury was rescheduled for the next
day.
On February 14, 2008, the prosecution requested that the jail
transport Petitioner to the courthouse in civilian clothes. See
People’s
Response
to
Motion
to
Dismiss,
¶10
&
Attachments,
submitted as part of Respondent’s Exhibits. However, Petitioner
appeared in prison garb again. Neither Petitioner nor defense
counsel raised an issue before entering the grand jury room. Id.,
¶10. Petitioner then announced that he was being prejudiced by
having the jury see him in prison garb, and refused to testify.
On
February
21,
2008,
the
prosecution
again
returned
Petitioner to the grand jury, this time wearing civilian clothing.
Petitioner indicated his displeasure with counsel, and was brought
before
the
trial
judge
who
informed
him
there
would
be
no
substitution of counsel. Petitioner refused to testify before the
grand jury with his present attorney.
The prosecution returned Petitioner to court on February 26,
2008,
attired
in
civilian
clothes.
The
trial
judge
informed
Petitioner there had not been an error, noting that anybody who
comes from jail to testify in [the] grand jury usually comes in
garb . . . .” Transcript of February 26, 2008 Hearing (“2/26/08
Tr.”) at 2 (quoted in Petitioner’s Memorandum of Law, ¶19 (Docket
-2-
No. 1)). Petitioner told the judge that having the jury see him in
his “prison orange” garb, shackles, and handcuffs had prejudiced
him and effectively had removed the presumption of innocence. Id.
The prosecutor explained that Petitioner had not raised an issue
about his attire until he actually was brought over and appeared
before the grand jury. Id. In light of this fact, the trial judge
commented that Petitioner’s argument was “not going anywhere,” and
Petitioner responded, “All right. I understand.” Id.
The trial judge noted that Petitioner was appearing that day
in civilian clothing and advised him that if he wished to testify,
he would have to do so with his current counsel. Petitioner,
fearing prejudice as the result of his earlier appearance in prison
clothing, refused to testify. The prosecutor issued a curative
instruction to the grand jury on the issue of Petitioner’s attire,
stating
that
whether
Petitioner
was
is
custody
could
not
be
considered by them in their deliberations. See Grand Jury Minutes
at 7, attached to Petition (Docket No. 1).
On April 18, 2008, Petitioner moved to dismiss the indictment
on the ground that he was not afforded a sufficient opportunity to
testify before the grand jury and was prejudiced by having to
appear in prison garb. After hearing oral argument, the newly
assigned trial judge agreed that was “improper for the government
to submit him for testimony before the grand jury dressed in his
jail clothing,” but held that “the curative instruction given by
the prosecutor dispelled any prejudice[.]” Order of Niagara County
-3-
Court Judge Matthew Murphy at 1 (citing People v. DiFondi, 275
A.D.2d 1018, 1018 (4th Dept.), lv. denied, 95 N.Y.2d 933 (N.Y.
2000)).
On November 21, 2008, Petitioner appeared with counsel before
the trial judge for a final pre-trial conference. See generally
Respondent Exhibit (“Resp’t Ex.”) A, Plea Transcript (“Plea Tr.”).
At
that
time,
Crumpler
decided
to
enter
a
guilty
plea
in
satisfaction of all four counts of the indictment. The prosecutor
explained that, in exchange for his guilty plea to Assault in the
Second Degree, and his concession to being sentenced as a second
felony offender, Petitioner would be offered the minimum three-year
prison term. Petitioner’s counsel confirmed with the prosecutor
that under the plea offer Petitioner would retain his right to
appeal the judgment of conviction. The prosecutor agreed to move to
dismiss charges pending against Petitioner in an unrelated Niagara
County indictment. Petitioner and his counsel then stated that he
wished to enter the guilty plea.
The trial court questioned petitioner and verified that he had
spoken with defense counsel about the guilty plea, and that he was
“willing to accept the plea.” The trial court then conducted a
colloquy with Crumpler, who was 48-years-old, had completed high
school, had no problems understanding English, and had had “enough
time to speak with [his counsel] about this proposed plea.” Plea
Tr. at 9-10. Petitioner affirmed that he had no complaints about
-4-
his counsel’s representation of him, stating counsel had “done the
best he could.” Plea Tr. at 10-11.
Petitioner also stated that he had not taken any alcohol or
drugs in the past twenty-four hours; that he was not under a
doctor’s care for mental, emotional, or psychological problems; and
that he took prescription drugs for an “arm injury” but they did
not affect his ability to think clearly. Id. at 11. Petitioner
confirmed that his mind was clear. Id.
In response to the trial judge’s questions, Petitioner stated
he understood that under the plea agreement, he would plead guilty
to second-degree assault, a Class D violent felony. Petitioner was
reminded that he must admit to being sentenced as a second felony
offender based upon a prior attempted drug-sale conviction. Plea
Tr. at 11-12. As a second felony offender, he faced a maximum
prison
sentence
conviction.
of
However,
seven
the
years
trial
on
court
a
second
informed
degree
him,
assault
it
would
sentence him to a determinate three year prison term in exchange
for his guilty plea plus a mandatory five-year term of post-release
supervision.
Id. at 12-13.
Petitioner confirmed that, aside from the terms of the plea
agreement that had been discussed, no one had promised him anything
in connection with the guilty plea. Petitioner stated that no one
told him he would receive a prison sentence of less than three
years, and that he had not been threatened, intimidated, or forced
into taking the plea. Plea Tr. at 13. Petitioner agreed that he was
-5-
entering
the
guilty
plea
“freely
and
voluntarily
after
full
consultation with [his] attorney.” Id.
Petitioner indicated his understanding of the constitutional
rights he would waive by entering the plea and foregoing a jury
trial,
including
participate
in
the
jury
rights
to
selection,
be
represented
counsel,
the
cross-examine
by
People’s
witnesses, testify or choose not to testify in his defense, and
have the People prove his guilt beyond a reasonable doubt. Plea Tr.
at 14-15.
Crumpler then gave a factual allocution, admitting to having
had a “scuffle” with Jackson on September 25, 2007, during which he
intentionally caused Jackson physical injury by using a dangerous
instrument. Id. at 15-16. Finding that there was “a factual basis
for the entry of the plea,” the trial court accepted Crumpler’s
guilty plea. Id. at 16-18.
On January 16, 2009, Petitioner appeared for sentencing and
admitted that as a result of his January 2000 conviction for
attempted criminal sale of a controlled substance in the third
degree,
he
was
a
second
felony
offender.
He
accordingly
was
sentenced as contemplated by the plea agreement. At the conclusion
of sentencing, the court granted the prosecutor’s motion to dismiss
the charges under Petitioner’s pending, unrelated indictment.
The Appellate Division, Fourth Department unanimously affirmed
the conviction, and the New York Court of Appeals denied leave to
-6-
appeal. People v. Crumpler, 70 A.D.3d 1396 (4th Dept.), lv. denied,
14 N.Y.3d 839 (N.Y. 2010).
Crumpler
timely
filed
the
instant
petition
raising
the
following grounds for relief: (1) the grand jury proceedings
violated his federal due process and equal protection rights
because he was brought to testify before the grand jury in prison
attire and restraints; (2) he was induced to plead guilty by the
prosecutor, who informed him that under the plea agreement he would
be able to appeal the grand jury issues; and (3) the prosecutor
breached the plea agreement by opposing Petitioner’s appeal raising
the grand jury issues.
On September 9, 2010, Petitioner was conditionally released
from prison, and remains under the supervision of the New York
Division of Parole as a result of the judgment of conviction at
issue in this petition.
For the reasons that follow, the petition is dismissed.
III. Jurisdiction
Respondent has not raised any jurisdictional issues to the
petition, notwithstanding Crumpler’s release to parole supervision.
Federal courts, however, are obliged to consider the question of
federal subject matter jurisdiction sua sponte. Manway Const. Co.,
Inc. v. Housing Auth. of City of Hartford, 711 F.2d 501, 503 (2d
Cir. 1983) (“It is common ground that in our federal system of
limited jurisdiction any party or the court sua sponte, at any
-7-
stage of the proceedings, may raise the question of whether the
court has subject matter jurisdiction . ” ).
A. The Habeas Statute's “In Custody” Requirement
“The federal habeas statute gives the United States district
courts jurisdiction to entertain petitions for habeas relief only
from persons who are ‘in custody in violation of the Constitution
or laws or treaties of the United States.’” Maleng v. Cook, 490
U.S.
488,
491
(1989)
(quotation
omitted)
(citing
28
U
.S.C.
§ 2254(a) (emphasis in original)). As noted above, Petitioner was
released on parole during the pendency of this petition. However,
Crumpler was incarcerated when he filed the petition, and therefore
he meets the “in custody” requirement of the habeas statute.
Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
B. Mootness
Crumpler’s release to parole supervision raises the question
of whether the petition satisfies Article III, § 2 of the U.S.
Constitution, by presenting a live “case or controversy.” E.g.,
Spencer v. Kemna, 523 U.S. 1, 7 (1998). “[W]here the issues
presented by a party in an action are no longer ‘live,’ or the
party lacks a legally cognizable interest in the outcome, the
federal action is properly dismissed as moot.” City of Erie v.
Pap’s A.M., 529 U.S. 277, 287 (2000). When a term of imprisonment
has expired, “some concrete and continuing injury other than the
now-ended incarceration or parole-some collateral consequence of
-8-
the
conviction-must
exist
if
the
suit
is
to
be
maintained.”
Spencer, 523 U.S. at 7.
In Sibron v. New York, 392 U.S. 40 (1968), the United States
Supreme Court determined that collateral consequences are presumed
to attach to criminal convictions post-release. Id. at 54–56;
accord, e.g., Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002).
Following Sibron, the Second Circuit held that “a habeas petition
challenging a criminal conviction is rendered moot by a release
from imprisonment only if it is shown that there is no possibility
that any collateral legal consequences will be imposed on the basis
of the challenged conviction.” Perez, 296 F.3d at 125 (internal
citations omitted).
At the present time, Crumpler continues to bear certain
adverse collateral consequences from his criminal conviction in
terms of continuing restraints on his liberty, including being
subject to supervision by the New York State Division of Parole.
Therefore, the Court concludes that the petition is not moot.
IV.
Exhaustion
A habeas court may not consider the merits of a claim unless
the federal nature of that claim was fairly presented to the
“highest state court from which a decision can be had.” Daye v.
Attorney Gen’l of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en
banc), cert. denied, 464 U.S. 1048 (1984); see generally 28 U.S.C.
§ 2254(b)(1). Respondent concedes that Petitioner has exhausted his
claim that was deprived of due process during the grand jury
-9-
proceedings because he was brought to testify while in restraints
and wearing prison garb. Respondent also admits that Petitioner has
exhausted his claim that he was induced to plead guilty by the
prosecutor, who inaccurately informed him that he would be able to
challenge all grand jury issues on appeal. However, Respondent
argues, Petitioner has not exhausted his claim that the prosecutor
breached the plea agreement by opposing his arguments concerning
the alleged grand jury errors on appeal. Respondent notes that
Petitioner did not raise that argument at any point on direct
appeal, and he has not raised it in any subsequent state motion.
Respondent explains that this particular claim arose during
the course of the direct appeal and thus was based on facts not
available to appellate counsel at the time she filed the brief.
Thus, Petitioner presumably could still raise that issue in a
collateral motion to vacate the judgment under C.P.L. § 440.10.
Respondent accordingly has not argued that the claim should be
deemed exhausted but barred from this Court’s review.
Respondent
instead
urges
the
Court
to
exercise
its
discretionary authority under 28 U.S.C. § 2254(b)(2) to deny a
petition containing unexhausted claims on the merits. The Court
agrees that dismissal of the entire claim under Section 2254(b)(2)
is appropriate because the unexhausted claim is without merit under
any
standard
of
review.
See,
e.g.,
Carr
v.
Senkowski,
No. 01-CV-689(RJA)(VEB), 2007 WL 3124624, at *20 (W.D.N.Y. Oct. 23,
2007)
(adopting
Report
&
Recommendation)
-10-
(“Carr’s
ineffective
assistance of counsel claims fail either the ‘patently frivolous’
or
‘nonmeritorious’
test,
the
two
standards
utilized
by
the
district courts in this Circuit to have considered the issue so
far. Moreover, they also fail under a pre-AEDPA standard of review.
Thus, it is appropriate for the Court to recommend reliance upon
28 U.S.C. § 2254(b)(2) in order to deny the habeas petition in its
entirety,
notwithstanding
Carr’s
failure
to
exhaust
state
remedies.”).
V.
Analysis of the Petition
A.
Defects in the Grand Jury Proceeding
Petitioner argues that he was improperly brought before the
grand jury in restraints and prison garb, and that the trial court
erroneously denied his motion to dismiss the indictment on that
ground. The Appellate Division found that while the claim survived
Petitioner’s
Appellate
guilty
Division
plea,
it
lacked
held
that
the
merit.
Specifically,
prosecutor’s
the
“cautionary
instructions to the grand jurors dispelled any possible prejudice
to [petitioner].” People v. Crumpler, 70 A.D.3d 1397 (quotation and
citations omitted). This claim does not assert an error of federal
constitutional magnitude cognizable on habeas review.
The Supreme Court has explained that “a guilty plea represents
a break in the chain of events which has preceded it,” and a
defendant who admits his guilt in open court “may not thereafter
raise
independent
claims
relating
to
the
deprivation
of
constitutional rights that occurred prior to the entry of the
-11-
guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973);
accord, e.g., United States v. Coffin, 76 F.3d 494, 497 (2d
Cir.1996). The Supreme Court explained that Tollett and the earlier
cases
on
which
it
relied
stand
for
the
proposition
“that
a
counseled plea of guilty is an admission of factual guilt so
reliable that, where voluntary and intelligent, it quite validly
removes the issue of factual guilt from the case” and therefore, a
guilty
plea
“simply
renders
irrelevant
those
constitutional
violations not logically inconsistent with the valid establishment
of factual guilt and which do not stand in the way of conviction if
factual guilt is validly established.” Menna v. New York, 423 U.S.
61, 62 n. 2 (1975) (concluding that a guilty plea did not bar the
petitioner’s double jeopardy claim, as “the claim is that the State
may not convict petitioner no matter how validly his factual guilt
is established”).
Crumpler’s
argument
concerning
his
attire
when
he
first
appeared before the grand jury, unlike the claim raised in Menna,
does not go to the constitutional permissibility of the state’s
initiation of proceedings against him or otherwise represent an
argument that, had it been accepted before trial, “would forever
preclude the state from obtaining a valid conviction against him,
regardless of how much the state might endeavor to correct the
defect,” United States v. Curcio, 712 F.2d 1532, 1539 (2d Cir.
1983). Therefore, his claim concerning the grand jury proceedings
does not survive his knowing, voluntary, and intelligent guilty
-12-
plea on the underlying indictment. Accord, e.g., Sullivan v. Goord,
No. 05-CV-6060L, 2007 WL 2746900, *9 (W.D.N.Y. Sept. 19, 2007)
(adopting Report & Recommendation of Bianchini, M.J.) (citations
omitted).
B.
False Inducement to Plead Guilty by the Prosecutor
1.
Factual Overview of Claim
Crumpler argues that he was induced to plead guilty by the
prosecutor who informed him that, under the plea agreement, he
would able to appeal issues relating to errors in the grand jury
proceeding. It is true that under the plea agreement, Crumpler was
not required to waive his direct appellate rights and thus he
retained the ability to argue the grand jury issues on appeal.
However, Crumpler did not move to withdraw his guilty plea or
to
vacate
the
conviction.
judgment
before
pursuing
direct
review
of
his
The Appellate Division accordingly held that Crumpler
had “failed to preserve for [its] review his contention that his
plea was not voluntarily, knowingly and intelligently entered on
the ground that he was unaware at the time of the plea that he was
thereby forfeiting his right to challenge the sufficiency of the
evidence before the grand jury[.]” People v. Crumpler, 70 A.D.3d at
1397 (citations omitted). Respondent contends that the Appellate
Division relied upon an adequate and independent state ground to
dismiss
the
claim
as
procedurally
barred,
further federal habeas review of the claim.
-13-
thereby
precluding
2.
The Adequate and Independent State Ground Doctrine
and Procedural Default
The Supreme Court has held that federal courts shall “not
review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citations
omitted). “This rule applies whether the state law ground is
substantive
or
procedural.”
Id.
(citations
omitted).
The
independent and adequate state ground doctrine may bar federal
habeas review “when a state court declined to address a prisoner's
federal claims because the prisoner had failed to meet a state
procedural requirement” for in such cases “the state judgment rests
on independent and adequate state procedural grounds.” Id. (citing,
inter alia, Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977)). Thus,
an adequate and independent finding of procedural default precludes
federal habeas review of the federal claim, unless the habeas
petitioner
can
show
“cause”
for
the
default
and
“prejudice”
attributable thereto, Murray v. Carrier, 477 U.S. 478, 485 (1986),
or demonstrate that the failure to consider the federal claim on
habeas will result in a “fundamental miscarriage of justice,” id.
at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)).
The Court agrees with Respondent that the Appellate Division
relied upon an “adequate and independent state ground” in rejecting
Crumpler’s contention regarding the voluntariness of his guilty
plea. The procedural bar clearly was an “independent” ground since
-14-
it was the sole basis for the state court’s decision. Furthermore,
as discussed below, it was a fully “adequate” basis for the
decision.
“[A] procedural bar will be deemed ‘adequate’ only if it is
based on a rule that is ‘firmly established and regularly followed’
by the state in question.” Garcia v. Lewis, 188 F.3d 71, 77 (2d
Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423–24 (1991)).
Whether application of the procedural rule is “ ‘firmly established
and regularly followed’” must be judged in the context of “the
specific circumstances presented in the case,” and “of the asserted
state
interest
in
applying
the
procedural
rule
in
such
circumstances.” Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003)
(quoting Lee v. Kemna, 534 U.S. 362, 386–87 (2002)).
In New York, the “firmly established and regularly followed
rule,” Lee, 534 U.S. at 386, for preserving a claim that a guilty
plea was involuntarily entered requires a defendant to move to
withdraw the plea or to vacate the judgment of conviction. See,
e.g., People v. Hilliard, 39 A.D.3d 1021, 1022 (3d Dept. 2007)
(“[D]efendant’s assertion that his guilty plea was involuntarily
entered is unpreserved for our review in light of his failure to
move
to
withdraw
conviction[.]”);
the
People
plea
v.
or
Johnson,
vacate
25
the
A.D.3d
judgment
331,
331,
of
805
N.Y.S.2d 830 (1st Dept. 2006) (“Since defendant did not move to
withdraw his plea, his challenge to the plea's voluntariness is
unpreserved[.]”).
-15-
As noted above, the procedural rule requiring a motion to
withdraw
the
plea
to
preserve
a
claim
of
involuntariness
constituted the Appellate Division’s sole basis for its ruling on
the involuntariness claim. As the foregoing New York state cases
make
clear,
compliance
with
the
rule
was
demanded
in
the
circumstances presented here, and Crumpler failed to comply with
the procedural rule. Thus, the procedural bar relied upon by the
appellate court in this case was “firmly established and regularly
followed,” and therefore constitutes an adequate state ground
barring review of the merits of Crumpler’s claim.
The
next
consideration
is
consider
whether
there
exists
“cause” for Crumpler’s procedural default of this claim and, in
addition, whether he will suffer actual “prejudice” as a result of
being precluded from asserting this claim on habeas review. Neither
“cause” nor “prejudice” is discernible on the record before the
Court. Furthermore, Crumpler has not demonstrated that he is
“factually innocent” so as to warrant the fundamental miscarriage
of justice exception. Accordingly, the Court finds that this claim
is subject to an excused procedural default, and it is dismissed on
that basis. Accord, e.g., Bennefield v. Kirkpatrick, 741 F. Supp.2d
447, 454 (W.D.N.Y. 2010).
C.
Breach of Plea Agreement by the Prosecutor
Petitioner contends that the prosecutor induced him to plead
guilty by informing him he would be able to appeal unpreserved
grand jury claims, and then violated the plea agreement’s terms by
-16-
opposing those claims when petitioner raised them on direct appeal.
This claim lacks a factual or legal basis.
As part of the plea agreement, the prosecutor agreed that
Petitioner would not waive his right to appeal any challenges to
the
grand
jury
proceedings.
See,
e.g.,
Plea
Tr.
at
3
(The
Prosecutor: “The People agree to not have him waive his right to
appeal. He would like to appeal the issue of the grand jury
proceedings, Judge . . . .).
The Court has reviewed the plea and
sentencing transcripts and nowhere does the prosecutor promise to
refrain from opposing Petitioner’s claims or guarantee that the
claims would be found to be preserved or meritorious on appeal.
Instead, the prosecutor simply agreed that Petitioner would retain
his right to directly appeal the judgment of conviction. By doing
so, the prosecutor in no way induced Petitioner’s guilty plea.
Petitioner cites Santobello v. New York, 404 U.S. 257, 262
(1971), which held that “when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can
be said to be a part of the inducement or consideration, such
promise must be fulfilled.” Here, however, there is nothing in the
record to suggest the existence of any promise by the prosecutor
not to oppose Crumpler’s arguments concerning the grand jury issues
on appeal. This claim is factually and legally baseless, and must
be dismissed.
-17-
VI.
Motion to Appoint Counsel
Crumpler has filed a motion to have pro bono counsel appointed
to represent him. The factors to be considered in ruling on a
motion for pro bono counsel are well settled and include “the
merits of plaintiff’s case, the plaintiff’s ability to pay for
private counsel, [plaintiff’s] efforts to obtain a lawyer, the
availability of counsel, and the plaintiff’s ability to gather the
facts and deal with the issues if unassisted by counsel.” Cooper v.
A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). Of these, “[t]he
factor which command[s] the most attention [is] the merits.” Id.
“‘In deciding whether to appoint counsel . . . the district judge
should first determine whether the indigent’s position seems likely
to be of substance.’” Hendrick v. Coughlin, 114 F.3d 390, 392 (2d
Cir. 1997) (quotation omitted).
As
discussed
above,
Crumpler’s
habeas
claims
are
not
meritorious, and it would be an abuse of discretion for this Court
to utilize scarce attorney resources in such a case. See Cooper,
877 F.2d at 174 (“Courts do not perform a useful service if they
appoint a volunteer lawyer to a case which a private lawyer would
not take if it were brought to his or her attention. Nor do courts
perform
a
socially
justified
function
when
they
request
the
services of a volunteer lawyer for a meritless case that no lawyer
would take were the plaintiff not indigent.”). Crumpler’s request
for pro bono counsel is accordingly denied.
-18-
VII. Conclusion
For the foregoing reasons, Lamon Crumpler’s request for a writ
of habeas corpus is denied and the petition (Docket No. 1) is
dismissed. Petitioner’s motion to appoint counsel (Docket No. 9) is
denied with prejudice. Petitioner has failed to make a substantial
showing of the denial of a constitutional right, and a certificate
of appealability shall not issue. 28 U.S.C. § 2253(c)(2). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R.App.P.
24(a)(3), that any appeal from this Decision and Order would not be
taken in good faith and therefore the Court denies leave to appeal
as a poor person from this Decision and Order. Coppedge v. United
States, 369 U.S. 438 (1962).
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
December 21, 2011
Rochester, New York
-19-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?