Caswell v. Racetti
DECISION and ORDER denying in part and dismissing as moot in part 4 Motion. Signed by Hon. Leslie G. Foschio on 1/17/2012. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
REGGIE D. CASWELL,
REGGIE D. CASWELL, Pro Se
Upstate Correctional Facility
Malone, New York 12953
ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Respondent
THOMAS BENJAMIN LITSKY
Assistant New York Attorney General, of Counsel
New York, New York 10271
This case as referred to the undersigned by Honorable Richard J. Arcara, on
July 8, 2011, for pretrial matters. The action is presently before the court on Petitioner’s
motion (Doc. No. 4), filed February 23, 2011, seeking discovery and an order directing
Petitioner be produced for an expedited hearing.
BACKGROUND and FACTS1
On February 23, 2011, Petitioner filed a petition (“Petition”) seeking habeas
The Facts are taken from the Petition and m otion papers filed in this action.
corpus relief pursuant to 28 U.S.C. § 2254 from a judgement of conviction by jury (“the
conviction”) entered on April 11, 2006 in Monroe County Court of Robbery in the
Second Degree (N.Y. Penal Law § 160.10(2)(b), Attempted Robbery in the Third
Degree (N.Y. Penal Law §§ 110.00 and 160.05), and two counts of Burglary in the
Second Degree (N.Y. Penal Law §§ 140.25(1)(d) and 140.25(2)). Petitioner, who
proceeded at trial pro se with court-appointed stand-by counsel, was sentenced on the
conviction as a persistent violent felony offender to indeterminate sentences of twentyfive years to life for the second-degree robbery and burglary counts, and twenty years
to life on the attempted third-degree robbery count. Petitioner’s sentences on the three
counts for robbery and burglary were to run concurrently, while his sentence on the
attempted robbery count was to run consecutively.
Briefly, the crimes to which the Petition pertains were committed on August 27,
2005, when Petitioner, following a botched robbery of a liquor store in which Petitioner
scuffled with the store clerk, smashing bottles of liquor on which both Petitioner and the
store clerk sustained multiple lacerations, fled the store on foot and entered the nearby
residence of a couple where Petitioner physically restrained a man by pretending to
brandish a handgun, and demanded and received money from the couple. Petitioner
then coerced the couple from their home to his vehicle, forcing the man into the
vehicle’s back seat and directing the woman to the driver’s seat before instructing her to
drive the vehicle away from the scene. Meanwhile, the liquor store clerk, who had
activated the store’s silent alarm but did not attempt to halt Petitioner’s flight from the
store, had followed Petitioner to the nearby resident and used a passerby’s cell phone
to alert the police to the Petitioner’s location. The police arrived before the woman had
driven Petitioner away in his vehicle, and arrested Petitioner, recovering $ 51 from his
person. After his arrest, Petitioner made a statement indicating that he had been
caught “red-handed.” The victims, including the liquor store clerk and the man and
woman to whose residence Petitioner had fled, identified Petitioner as the perpetrator of
the attempted robbery of the liquor store, and the burglary of the residence and the
robbery of the couple occupying the residence. Admitted into evidence at trial was the
clothing the male half of the couple wore when assaulted by Petitioner, stained with
Petitioner’s blood from the lacerations sustained during the attempted robbery of the
liquor store, and a sample of blood collected from Petitioner’s vehicle following his
Upon appeal to New York Supreme Court, Fourth Department, Petitioner’s
conviction was unanimously affirmed on November 21, 2008. People v. Caswell, 867
N.Y.S.2d 638 (4th Dept. 2008). Leave to appeal to the New York Court of Appeals was
denied on January 28, 2009, People v. Caswell, 902 N.E.2d 442 (N.Y. 2009), and
reconsideration was denied on March 17, 2009, People v. Caswell, 906 N.E.2d 1092
(N.Y. 2009). A petition for writ of certiorari was denied by the United States Supreme
Court on June 8, 2009. Caswell v. New York, __ U.S. __, 129 S.Ct. 2775 (2009). On
December 7, 2009, Petitioner’s motion pursuant to New York Criminal Procedure Law
(“N.Y. C.P.L.”) § 440.20, seeking to set aside his sentence was granted with regard to
the attempted third-degree burglary count, on which Petitioner was resentenced, on
January 8, 2010, as a second felony offender to an indeterminate prison term of two to
four years, to run consecutively to his other sentences.
On February 23, 2011, Petitioner filed the instant Petition for habeas relief. On
February 23, 2011, Petitioner filed a motion (Doc. No. 4) (“Petitioner’s motion”), seeking
discovery of allegedly exculpatory trial and sentencing hearing exhibits with which
Petitioner maintains Respondents failed to produce in connection with Petitioner’s direct
appeal of his conviction. Petitioner also seeks an order directing an expedited
evidentiary hearing on the petition, and Petitioner’s appearance at the hearing.
Petitioner’s motion is supported by the attached Affidavit of Reggie D. Caswell
(“Petitioner’s Affidavit”), and Memorandum of Law (“Petitioner’s Memorandum”).
Although Respondent did not file any response to Petitioner’s motion, several of
the issues raised in Petitioner’s motion are addressed in Respondent’s Memorandum of
Law in Opposition to the Petition for a Writ of Habeas Corpus (Doc. No.16)
(“Respondent’s Memorandum”), filed August 12, 2011. On September 26, 2011,
Petitioner filed an Affirmation Seeking Discovery Pursuant to Local Rule § 37 (Doc. No.
21) (“Petitioner’s Affirmation”), in which Petitioner reiterates his request for discovery of
the six items of evidence Petitioner’s motion seeks to have produced.
Based on the following, Petitioner’s motion (Doc. No. 4) is DENIED.
Petitioner seeks discovery of evidence outside the State Court Record, as well
as an evidentiary hearing to consider such evidence and a court order directing
Petitioner’s appearance at the requested evidentiary hearing. As stated, Respondent
has not directly responded in opposition to Petitioner’s motion, but addresses the
issues raised therein in papers filed in response to the Petition, particularly, in
Respondent’s Memorandum. A review of Petitioner’s motion demonstrates that the
discovery Petitioner seeks would not support any of the grounds on which Petitioner
seeks habeas relief, rendering moot the requests for an evidentiary hearing to consider
such evidence, as well as for a court order directing Petitioner’s appearance at the
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled
to discovery as a matter of course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997) (citing
Harris v. Nelson, 394 U.S. 286, 295 (1969) (concluding the “broad discovery provision”
of the Federal Rules of Civil Procedure do not apply in habeas proceedings)).
Nevertheless, pursuant to Rule 6(a) of the Federal Habeas Corpus Rules (“Rule 6(a)”),
a judge has discretion to authorize, upon a showing of good cause, discovery in a
§2254 proceeding under the same discovery devices available under the Federal Rules
of Civil Procedure. 28 U.S.C. § 2254 Rule 6(a); See Bracy, 520 U.S. at 904 (discussing
how the Supreme Court, “to formulate rules of practice with respect to federal habeas
corpus . . . proceedings, . . . . in 1976, promulgated and Congress adopted the Rules
Governing § 2254 Cases.”). The “good cause” standard is satisfied when “‘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 (quoting Harris, 394 U.S. at 300). Generalized statements about the
possible existence of discovery material are insufficient to establish the requisite “good
cause.” Green v. Artuz, 990 F.Supp. 267, 271 (S.D.N.Y. 1998). Furthermore, “[t]he
Court may, in its discretion, deny discovery where the petitioner provides no specific
evidence that the requested discovery would support his habeas corpus petition.”
Hirschfeld v. Commissioner of the Division of Parole, 215 F.R.D. 464, 465 (S.D.N.Y.
2003) (citing Gonzalez v. Bennett, 2001 WL 1537553, at * 4 (S.D.N.Y. Nov. 30, 2001)).
In his motion, Petitioner seeks discovery of six items of evidence, including (1) a
surveillance video tape referred to at trial as “People’s Trial Exhibit 9," (2) a surveillance
video tape referred to at trial as “People’s Trial Exhibit 22,” (3) persistent felony offender
statement dated March 27, 2006, (4) People’s sentencing hearing exhibits 4 through 7,
(5) surveillance videotape obtained by Officer Renz, and (6) DNA test results requested
by Officer Rice. None of these items, however, would support the Petition and, thus,
need not be produced.
Before determining whether discovery should be allowed pursuant to Rule 6, the
court must first identify the "essential elements" of the petitioner's habeas claims the
requested discovery would support. Bracy, 520 U.S. at 904 (quoting United States v.
Armstrong, 517 U.S. 456, 468 (1996)). Here, Petitioner asserts as grounds
for habeas relief that (1) he was denied a preliminary hearing and the right to testify
before the grand jury; (2) the verdict was against the weight of the evidence, the
evidence was legally insufficient, and actual innocence; (3) the first count of the
indictment charging robbery in the second degree was duplicitous; (4) concealment of
exculpatory evidence, specifically, the clothing of one of the victims; (5) two police
reports constituting Brady material were withheld; (6) wrongful denial of Petitioner’s
request that the jury be instructed on the defense of justification; (7) the court erred by
refusing to remove the prosecutor; (8) N.Y. C.P.L.R. 5525, governing the settlement of
the transcripts for purposes of appeal, was unconstitutionally applied to Petitioner; (9)
New York’s persistent felony offender statute is unconstitutional; (10) the imposition of
consecutive sentences was erroneous; (11) the People failed to establish Petitioner had
two prior violent felony convictions; (12) Petitioner was improperly sentenced as a
persistent violent felony offender based on his Illinois conviction; and (13) Petitioner’s
sentence was excessive. All the items of evidence Petitioner seeks to have produced
are relevant either to Petitioner’s identification as the defendant with regard to the
underlying conviction (the three surveillance videotapes and the DNA test results) and,
thus, Petitioner’s actual guilt or innocence of the predicate crimes, or to the sentence
imposed relative to the April 11, 2006 conviction (the persistent felony offender
statement and the sentencing hearing exhibits 4 through 7). As such, the evidence
relates to Petitioner’s second and fifth grounds challenging Petitioner’s identification as
the perpetrator of the crimes, as well as to Petitioner’s ninth, tenth, eleventh, twelfth,
and thirteenth claims challenging the sentences imposed for the conviction.
With regard to the discovery Petitioner requests relative to his identity as the
perpetrator of the crimes with which he was charged and subsequently convicted, the
record establishes that because Petitioner was apprehended during the commission of
of the robbery for which he was convicted on April 11, 2006, Petitioner’s identity was
never at issue in the underlying criminal prosecution against Petitioner. Respondent’s
Memorandum at 64. Because Petitioner’s identity as the perpetrator of the crimes for
which he was convicted on April 11, 2006, was never in question, no DNA testing was
ever requested or performed on any blood samples collected. Id. Petitioner has not
argued in opposition to Respondent’s assertions. As such, the DNA evidence Petitioner
requests does not exist.
Respondent further explains, Respondent’s Memorandum at 63-65, and
Petitioner does not dispute, that the surveillance video tapes Petitioner seeks depict
only Petitioner’s arrest, rather than the commission of the crimes for which Petitioner
was convicted. Accordingly, the surveillance videotapes would not support any ground
of the Petition challenging Petitioner’s identity as the perpetrator of the crimes.
Moreover, although the Supreme Court has never recognized a claim of actual
innocence in a § 2254 petition filed in a non-capital case, the Court has strongly
indicated that were such a claim amendable to federal habeas review in a non-capital
case, the evidence proffered to support a claim of “actual innocence” would be
subjected to a higher standard than the standard governing claims of insufficient
evidence established by Jackson v. Virginia, 443 U.S. 307 (1979) for habeas cases.
See House v. Bell, 547 U.S. 518, 538-39 (2006) (holding standard for invoking actual
innocence exception to habeas corpus procedural bar rule is not higher than the
standard governing insufficient evidence claims on habeas review). Here, because the
surveillance videotapes depict only Petitioner’s arrest, rather than the actual
commission of the crimes, the videotapes would not rise to the standard of proof
necessary to establish Petitioner’s claim that he is actually innocent of the crimes.
Petitioner’s motion, insofar as it seeks production of three surveillance video
tapes, and DNA test results on blood samples collected from Petitioner’s vehicle, is
Nor is there any merit to Petitioner’s motion with regard to Petitioner’s request for
People’s sentencing hearing exhibits. Respondent maintains, Respondent’s
Memorandum at 63, and Petitioner does not dispute, that People’s sentencing hearing
exhibits 4 through 7 are contained in the State Court Record, specifically, the Appellate
Division appendix, Exh. E at R. 333-60 (Doc. No. 15-4 at 68-95); and S 64-70 (Doc. No.
15-7 at 64-70). Accordingly, Petitioner’s motion is DISMISSED as moot with regard to
the sentencing hearing exhibits.
Further, insofar as Petitioner seeks the Persistent Felony Offender Statement
dated March 27, 2006, Petitioner has provided no specific evidence that the requested
discovery would support his habeas corpus petition as required. Hirschfeld, 215 F.R.D.
at 465 (citing Gonzalez, 2001 WL 1537553, at * 4). Petitioner’s motion is, therefore,
DENIED as to this request.
Petitioner seeks a court order for an expedited evidentiary hearing at which the
requested discovery can be considered, as well as an order directing Petitioner’s
attendance at the evidentiary hearing pursuant to 28 U.S.C. § 2241(c)(3) and (5).
“[T]he Supreme Court and Congress have severely limited the situations in which
a habeas court is required or even permitted to hold an evidentiary hearing to consider
factual claims by a habeas petitioner.” Nieblas v. Smith, 204 F.3d 29, 31-32 (2d Cir.
1999) (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992) (requiring a hearing only
when the petitioner can establish cause for his failure to develop an adequate factual
record below and prejudice resulting from that failure); and 28 U.S.C. § 2254(e)(2).
Pursuant to 28 U.S.C. § 2254(e)(2), a district court is prohibited from holding an
evidentiary hearing where the habeas applicant “failed to develop the factual basis of a
claim in State court proceedings” unless the applicant demonstrates that
(A) the new claim relies on - 9
(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
The court construes Petitioner’s request for the evidentiary hearing as made
pursuant to 28 U.S.C. § 2254(e)(2)(A)(ii), based on Petitioner’s desire to have the court
consider the discovery requested in Petitioner’s motion. With the court’s denial of the
discovery requested in Petitioner’s motion, however, there is no need for either the
evidentiary hearing, or Petitioner’s attendance at the hearing, and Petitioner’s motion is
DISMISSED as moot as to that aspect.
Petitioner’s motion (Doc. No. 4) is DENIED in part and DISMISSED as moot in
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
January 17, 2012
Buffalo, New York
Any appeal of this Decision and Order must be taken to by filing a notice of
appeal within 14 days of the filing of this Decision and Order pursuant to
Fed. R. Civ. P. 72(a).
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