Nunez v. Danforth
- Paul Gardephe
- 1:20-cv-10230
- U.S. District Court · Southern District of New York
- 6
In Nunez v. Danforth, Judge Aaron denied appointed counsel but granted Nunez 30 more days to reply in his federal habeas case.
Jose Nunez’s requests for appointed counsel and additional time were affected. He must file his reply within 30 days, while his habeas petition remains unresolved by this order.
What happened
In Nunez v. Danforth, Jose Nunez asked the court to appoint a lawyer and give him more time to respond to the respondent’s answer in his challenge to a New York state-court conviction. He filed the request after the respondent answered his petition.
The court declined to appoint counsel. On a preliminary review, it found that Nunez’s claims appeared likely to be barred by the filing deadline or lack merit. The court did not decide the habeas petition itself in this order.
Judge Stewart D. Aaron granted Nunez a 30-day extension to file his reply but denied his request for appointed counsel. If Nunez does not file a reply within that period, the court will treat the matter as fully briefed.
The detailed version
- Nunez v. Danforth · No. 1:20-cv-10230
- Paul Gardephe
- Mar. 18, 2021
Background
Jose Nunez filed a petition under 28 U.S.C. § 2254 challenging his judgment of conviction in New York state court. His original petition raised four constitutional grounds, and his amended petition added a fifth. The respondent filed an answer on February 12, 2021.
Nunez then moved for appointment of counsel to help prepare a reply to the answer and requested additional time to file that reply.
Appointment of Counsel
The court explained that a petitioner generally has no constitutional right to appointed counsel in a federal habeas proceeding. Appointment is discretionary. Before considering other factors, the petitioner must show that the claims have substance or a likelihood of success. The court also considers the petitioner’s ability to obtain representation, ability to present the case without assistance, complexity of the legal issues, need for factual investigation, and need for expert cross-examination.
The court denied appointment of counsel. It found that Nunez had not shown why his petition had sufficient merit to justify counsel or why he could not present the case himself.
The court’s preliminary review identified several apparent problems with the petition. It stated that the petition appeared to be filed after the one-year federal deadline and that Nunez had not established a plausible basis for extending that deadline because of pandemic-related circumstances. The court also stated that a prior state petition did not appear to qualify for statutory tolling because it was not properly filed.
The court further stated that Nunez’s individual grounds appeared unlikely to succeed. It said that his claims concerning an allegedly amended indictment and a changed prosecution theory did not appear to provide a basis for federal habeas relief; that his challenge to the jury’s definition of “public servant” concerned state law; that his sufficiency-of-the-evidence claim did not show the required error in the state appellate decision under 28 U.S.C. § 2254(d); and that his claim concerning the trial court’s subject-matter jurisdiction involved a state-law issue not cognizable in federal habeas review.
Extension of Time and Disposition
The court granted in part and denied in part Nunez’s motion. It denied the motion for appointment of counsel and granted the motion for an extension of time. Nunez was given 30 days from the date of the opinion and order to file his reply. Judge Stewart D. Aaron stated that, if no reply is filed within that period, the matter will be deemed fully briefed. This order did not finally resolve Nunez’s habeas petition.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.