Rogers v. Warden

2014 DNH 108

• Court: District Court, D. New Hampshire
• Decided: May 19, 2014
• Docket: 13-cv-322-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott N. Rogers

v. Civil No. 13-cv-322-LM Opinion No. 2014 DNH 108 Richard Gerry, Warden, New Hampshire State Prison

O R D E R

Before the court in this petition, filed pursuant to 28

U.S.C. § 2254, are petitioner Scott N. Rogers’s motions for a

hearing (doc. no. 17) and for appointment of counsel (doc. no.

18). Respondent has not specifically objected to either motion,

but has moved for summary judgment (doc. no. 22) asserting,

among other things, that no hearing on the petition is

necessary.

I. Motion for Hearing

A “habeas judge, before granting an evidentiary hearing,

‘must [first] consider whether such a hearing could enable an

applicant to prove the petition’s factual allegations, which, if

true, would entitle the applicant to federal habeas relief.’”

Teti v. Bender, 507 F.3d 50, 62 (1st Cir. 2007). Section

2254(e)(2) further provides that if a petitioner moves for an

evidentiary hearing to develop the factual basis for a claim,

the federal court must deny the request unless the petitioner shows that the claim relies on “a factual predicate that could

not have been previously discovered through the exercise of due

diligence,” 28 U.S.C. § 2254(e)(2)(A)(ii), and that the “facts

underlying the claim would be sufficient to establish by clear

and convincing evidence that but for constitutional error, no

reasonable fact-finder would have found the applicant guilty of

the underlying offense,” id. § 2254(e)(2)(B).

Rogers seeks a hearing concerning his due process claim

challenging the denial of Rogers’s pretrial discovery request to

obtain the recording of a phone conversation between him and

Christopher Leavitt that Bedford Police Department Officer

Griswold used in obtaining a search warrant of Rogers’s

apartment. That search recovered new televisions that had been

stolen from a hotel in Bedford, while it was under construction.

Rogers asserts that a hearing in this court would show that

Bedford Police Officer Griswold lied in the search warrant

application by misrepresenting Leavitt’s statements to

incriminate Rogers more than they actually did.

Rogers called Leavitt as a witness at trial, and the court

specifically allowed Rogers to ask Leavitt what he had said to

the police regarding the televisions. See Doc. No. 22-7, at

126-27. Leavitt testified that he remembered being asked by the

police to call Rogers because the police thought Rogers was into

“dirty stuff,” but Leavitt further testified that he could not

2 remember what was said in the phone call between Leavitt and

Rogers. Id. at 129-30.

Griswold testified at trial that he had obtained a warrant

to search Rogers’s apartment, with information obtained from

Griswold’s own surveillance of the hotel construction site after

the theft, and “other information.” Id. at 97. Rogers was

allowed to cross-examine the officer, but did not ask Griswold

any questions about the search warrant application, or about the

“other information” on which it was based.

Rogers has failed to show at this time that an evidentiary

hearing is warranted on the § 2254 petition, in that Rogers has

not shown that he exercised due diligence in the trial court,

and he has not shown that a hearing could yield facts supporting

a claim meeting the standard set forth in § 2254(e)(2)(B).

Rogers’s motion for a hearing (doc. no. 17) is therefore denied

without prejudice to refiling if Rogers is able to make the

required showing at a later stage of this matter.

II. Motion for Appointment of Counsel

“‘[T]here is no constitutional right to representation by

counsel in habeas corpus proceedings,’ and [the Criminal Justice

Act, 18 U.S.C.] § 3006A(a)(2) only requires appointment of

counsel for a financially eligible person if ‘the interests of

justice so require.’” United States v. Yousef, 395 F.3d 76, 77

3 (2d Cir. 2005) (per curiam) (citation omitted); cf. DesRosiers

v. Moran, 949 F.2d 15, 24 (1st Cir. 1991) (district court has

discretion to deny motion to appoint counsel filed by indigent

litigant unless counsel’s appointment is necessary to avoid

fundamental unfairness). Rule 8(c) of the Rules Governing

Section 2254 Cases in the United States District Courts does not

require counsel’s appointment, unless the court has found that

an evidentiary hearing is warranted.

Rogers has asserted in Document No. 18 that he needs a

lawyer because he cannot understand the legal terms and forms

used in this action. Rogers’s situation, however, presents no

exceptional circumstance warranting an appointment of counsel,

and no hearing has been scheduled on the petition. Having

reviewed all relevant information in the record, the court

concludes that at this time, the interests of justice do not

require the appointment of counsel for Rogers. Accordingly, the

motion to appoint counsel (doc. no. 18) is denied without

prejudice to refiling if a hearing is scheduled in this matter,

or if other exceptional circumstances arise warranting counsel’s

appointment.

III. State Court Record

The record before this court lacks certain documents that

relate to Rogers’s claims and that are part of the state court

4 record. Those documents include the transcript of a November

10, 2009, motions hearing in Rogers’s criminal case, relating to

Rogers’s pretrial discovery requests. This court also lacks an

unredacted copy of the appendix filed by Rogers in the New

Hampshire Supreme Court in his direct appeal. The respondent is

directed to file: a transcript of the November 10, 2009, motions

hearing; and an unredacted copy of the appendix filed in

Rogers’s direct appeal. The respondent may file the unredacted

copy of the appendix under provisional seal, along with a motion

to seal, stating the information required by LR 83.12.1

Conclusion

For the foregoing reasons, the court directs as follows:

1. The motions for a hearing (doc. no. 17) and for

appointment of counsel (doc. no. 18) are both denied without

prejudice.

2. Respondent, within 60 days of the date of this order,

is directed to file:

• a transcript of the November 10, 2009, motions hearing in Rogers’s criminal case; and

1 A motion to seal must “explain the basis for sealing, specify the proposed duration of the sealing order, and designate whether the material is to be sealed at Level I or Level II.” LR 83.12(c). A Level I seal allows any attorney appearing in the case to review the sealed document without a court order, and a Level II seal requires any person other than the person who filed the sealed document to obtain leave of court before reviewing the document. See LR 83.12(b).

5 • an unredacted copy of the appendix to Rogers’s direct appeal of his criminal conviction, along with a motion to seal, stating the information required by LR 83.12.

SO ORDERED.

__________________________ Landya McCafferty United States Magistrate Judge

May 19, 2014

cc: Scott Rogers, pro se Elizabeth C. Woodcock, Esq. LBM:nmd