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
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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
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(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
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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).
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• 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
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