Miller v. Fennessey
Filing
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DECISION AND ORDER denying 14 Motion to Appoint Counsel; granting 17 Motion for Extension of Time to File. Petitioner's Reply (Dkt. No. 19) is deemed timely. The Clerk of the Court is directed to send a copy of this Decision and Order to Petitioner. SO ORDERED. Signed by Hon. H. Kenneth Schroeder Jr. on 12/22/2020. (HKG)<p>-CLERK TO FOLLOW UP-
Case 1:20-cv-00354-LJV-HKS Document 20 Filed 12/22/20 Page 1 of 5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MELVIN H. MILLER,
Petitioner,
v.
20-CV-354-JLV
SUPERINTENDENT FENNESSY,
Respondent.
DECISION AND ORDER
This case was referred to the undersigned by the Hon. Lawrence J. Vilardo,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. No. 13. Petitioner Melvin H. Miller (“Petitioner”), an inmate of the
New York State Department of Corrections and Community Supervision, challenges the
constitutionality of his conviction after a non-jury trial in Wyoming County Court of three
felonies, Burglary in the Second Degree, Driving While Intoxicated as a class D felony, and
Criminal Contempt in the First Degree, as well as other misdemeanors and violations. Dkt.
No. 1; Dkt. No. 10, p. 3. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
RELEVANT FACTS
The convictions arise from a dispute between Petitioner and Jennifer
Woodburn over two dogs that they purchased together while in a relationship but which
remained in Woodburn’s custody after their breakup. Dkt. No. 10, p. 4. According to the
State’s evidence, on August 31, 2015, after being refused access to the dogs over the
phone, Petitioner became very angry and called Woodburn a “bitch” and a “cunt.” Dkt. No.
10, p. 5. Woodburn called the police. Dkt. No. 10, p. 5. Petitioner arrived later at
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Woodburn’s house, and became “enraged” when Woodburn would not let him in. Dkt. No.
10, p. 5. Petitioner entered Woodburn’s house through a small window near the porch,
broke into a bedroom in which Woodburn had locked herself, and took one of the dogs.
Dkt. No. 10, p. 5.
Petitioner led the responding officers on a high-speed car chase through
Bennington, New York, driving through multiple stops signs, crossing the yellow divider
line, and nearly colliding with another car and a pedestrian before striking a house with his
side-view mirror. Dkt. No. 10, p. 6. When the police apprehended Petitioner, he appeared
to them to be intoxicated. Dkt. No. 10, p. 6. Petitioner allegedly resisted arrest and was
tased three times, all of which was recorded on video by a police body camera. Dkt. No.
10, p. 6. During the encounter, Petitioner stated that Woodburn had stolen his dogs and
his money, and “all [he] wanted was one of them.” Dkt. No. 10, p. 6. When the police
searched Petitioner’s car, they found pills, unopened containers of alcohol, and a large
open cup that appeared to contain alcohol. Dkt. No. 10, p. 6.
On August 31, the day of the incident, an order of protection was entered
against Petitioner that restricted him from contacting Woodburn. Dkt. No. 10, p. 6.
Nonetheless, during October and November of that year, petitioner telephoned Woodburn
fifty-two times, “occasionally asking her to recant her statements to the police and drop the
charges against him.” Dkt. No. 10, pp. 6-7.
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After his conviction, Petitioner was sentenced to a determinate prison term of
seven years to be followed by five years of post-release supervision for burglary, and to
lesser, concurrent prison terms for the other felony convictions. Dkt. No. 10, p. 3. The
Appellate Division, Fourth Department, affirmed Petitioner’s judgment of conviction and the
New York Court of Appeals denied leave to appeal. People v. Miller, 159 A.D.3d 1608 (4th
Dep’t) (two justices dissenting in part), lv. den., 31 N.Y.3d 1151 (2018).
Petitioner now moves for appointment of counsel and for an extension of
time to file his reply. Dkt. Nos. 14 & 15. “If an evidentiary hearing is warranted [in a
habeas action], the judge must appoint an attorney to represent a petitioner who qualifies
to have counsel appointed under 18 U.S.C. § 3006A.” Rules Governing § 2254 Cases,
Rule 8(c). Additionally, a court must appoint an attorney for a qualifying petitioner “[i]f
necessary for effective discovery[.]” Rules Governing § 2254 Cases, Rule 6(a).
Otherwise, appointment of counsel in a Section 2254 action may be provided when “the
interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). “In determining
whether appointment of counsel is required for prisoners seeking habeas relief . . . , the
court should consider the factual and legal complexities of the case, the prisoner’s ability to
investigate and present claims, the existence of conflicting testimony, and any other
relevant factors.” Satter v. Class, 976 F. Supp. 879, 885 (D.S.D. 1997).
Petitioner claims that he is entitled to habeas relief because: (1) he is actually
innocent of second-degree burglary and petit larceny; (2) the People knowingly introduced
police body-camera video that had been tampered with; (3) the evidence was legally
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insufficient to support petitioner’s convictions of second-degree burglary and petit larceny;
and (4) the People coerced the victim to testify falsely at trial. Dkt. No. 10, p. 3.
Respondent argues that the habeas petition should be denied because his actualinnocence claim is not cognizable on federal habeas corpus review, and his other claims
are procedurally barred and meritless. Dkt. No. 10, p. 3.
This Court finds that appointment of counsel is not warranted at this time.
This habeas action is currently in the preliminary review stage. Moreover, the primary
challenges to the petition are strictly legal, that is, whether his actual innocence claim is
cognizable and whether his other claims are procedurally barred. Neither of these issues
requires an evidentiary hearing or further discovery. Should this Court find that it can
reach the merits of Petitioner’s tampering or coercion claims, and that discovery or a
hearing is warranted on these matters, it will revisit Petitioner’s request for assignment of
counsel as required by Rule 8(c). In the meantime,
IT IS HEREBY ORDERED that Petitioner’s motion for appointment
of counsel (Dkt. No. 14) is DENIED, and his requests for an extension of time to file a reply
(Dkt. Nos. 15 and 17) are GRANTED. Petitioner’s reply, filed on December 11, 2020 (Dkt.
No. 19), is deemed timely.
Nothing in this Decision and Order shall preclude Petitioner from requesting
appointment of counsel at a later point in this action should additional circumstances arise
to justify such an appointment.
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The Clerk of the Court is directed to mail a copy of this Decision and Order to
Petitioner.
SO ORDERED.
DATED:
Buffalo, New York
December 22, 2020
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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