SECOND CIRCUIT HABEAS CORPUS OUTLINE Richard W. Levitt Levitt & Kaizer 40 Fulton Street, 23rd Floor New York, New York 10038 (212) 480-4000 www.levittandkaizer.com

GENERALLY ................................................................................................................................................. 1 ABUSE OF PROCESS/WRIT ............................................................................................................................. 7 ACTUAL INNOCENCE ..................................................................................................................................... 8 ADJOURNMENTS/CONTINUANCES/DELAYS/RECESSES ........................................................................................ 8 ALL WRITS ACT ........................................................................................................................................... 9 AMENDMENTS TO PETITIONS ......................................................................................................................... 9 ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT (“AEDPA”) .................................................................... 9 Generally ............................................................................................................................................. 9 Certificate of Appealability ................................................................................................................ 11 Retroactivity ...................................................................................................................................... 11 Standard of Deference ...................................................................................................................... 11 APPEAL .................................................................................................................................................... 12 APPOINTMENT OF COUNSEL ........................................................................................................................ 12 AVAILABLE RELIEF ...................................................................................................................................... 12 Generally ........................................................................................................................................... 12 Convention Against Torture .............................................................................................................. 13 Parole ................................................................................................................................................ 13 Restitution ......................................................................................................................................... 13 BURDEN OF PROOF .................................................................................................................................... 13 Substantial and Injurious Effect ......................................................................................................... 14 CERTIFICATE OF APPEALABILITY .................................................................................................................... 14 CONSCIENTIOUS OBJECTORS ........................................................................................................................ 15 CONFRONTATION CLAUSE/RIGHTS ................................................................................................................ 15 CORAM NOBIS, WRIT OF ERROR ................................................................................................................... 15 CUSTODY REQUIREMENT ............................................................................................................................. 16 DEFERENCE ............................................................................................................................................... 17 DISCOVERY ............................................................................................................................................... 17 DISMISSAL ................................................................................................................................................ 18 Prejudicial Delay ................................................................................................................................ 18 EFFECTIVE ASSISTANCE OF COUNSEL – SEE ALSO EFFECTIVE ASSISTANCE OF COUNSEL (MAIN HEADING) .......... 18 EVIDENTIARY HEARINGS .............................................................................................................................. 19 EXHAUSTION OF REMEDIES – SEE ALSO PROCEDURAL DEFAULT .......................................................................... 19 FACTUAL DISPUTES/FINDINGS ...................................................................................................................... 24 Presumption of Correctness .............................................................................................................. 26 GUILTY PLEAS ............................................................................................................................................ 26 GROUNDS FOR GRANTING RELIEF ................................................................................................................. 26 Generally ........................................................................................................................................... 26 Alibi Defense/Witness/Testimony ..................................................................................................... 26 Appellate Delay ................................................................................................................................. 27 Appellate Rights ................................................................................................................................ 28 Conditions of Confinement ................................................................................................................ 28 Defense - Right to present ................................................................................................................. 28 Double Jeopardy ................................................................................................................................ 28 Fair Notice ......................................................................................................................................... 28 Fourth Amendment Claims ................................................................................................................ 29 Ineffective Assistance of Counsel ...................................................................................................... 29 Jury Instructions ................................................................................................................................ 30

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Lesser Included Offenses ................................................................................................................... 30 Mental Capacity ................................................................................................................................ 30 Perjured Testimony ........................................................................................................................... 30 Reduction of Sentence ....................................................................................................................... 31 Right to Counsel ................................................................................................................................ 31 Right to Testify .................................................................................................................................. 31 State Constitutional Claims ............................................................................................................... 32 Sufficiency of Evidence ...................................................................................................................... 32 Voluntariness of Statements ............................................................................................................. 33 HARMLESS ERROR ANALYSIS ........................................................................................................................ 33 HEARINGS ................................................................................................................................................. 34 IN-CUSTODY REQUIREMENT - SEE CUSTODY (THIS HEADING) ............................................................................. 34 INDIGENTS ................................................................................................................................................ 35 JURISDICTION ............................................................................................................................................ 35 LIMITATIONS PERIOD/TIMELINESS/LACHES ..................................................................................................... 35 LOCAL LAW AND PRECEDENT ....................................................................................................................... 41 MULTIPLE CLAIMS FOR RELIEF ...................................................................................................................... 41 PERSISTENT FELONY OFFENDERS – SEE SENTENCING-ADJUSTMENTS AND DEPARTURES-PRIOR/PERSISTENT FELONY OFFENDERS ............................................................................................................................................... 41 PRO SE LITIGANTS ...................................................................................................................................... 41 PROCEDURAL DEFAULT – SEE ALSO EXHAUSTION ............................................................................................. 42 Generally ........................................................................................................................................... 42 Cause & Prejudice .............................................................................................................................. 48 PROSECUTORIAL MISCONDUCT ..................................................................................................................... 50 REASONABLE/UNREASONABLE APPLICATION OF FEDERAL LAW- SEE STANDARD OF REVIEW (THIS HEADING) ............. 50 REMANDS/REHEARINGS .............................................................................................................................. 50 REMEDY ................................................................................................................................................... 51 REOPENING PROCEEDING UNDER RULE 60(B) ................................................................................................. 51 RETROACTIVITY .......................................................................................................................................... 51 SEARCH AND SEIZURE- SEE GROUNDS FOR RELIEF -- FOURTH AMENDMENT CLAIMS (THIS HEADING) ........................ 52 SECOND PETITIONS -- SEE SUCCESSIVE PETITIONS ............................................................................................ 52 SENTENCE AND JUDGMENT .......................................................................................................................... 52 SPECIAL NEEDS DOCTRINE ........................................................................................................................... 53 STANDARD OF REVIEW ................................................................................................................................ 53 Generally ........................................................................................................................................... 53 Reasonable/Unreasonable Application of Federal Law .................................................................... 53 STANDING ................................................................................................................................................ 54 Generally ........................................................................................................................................... 54 Next Friend Status ............................................................................................................................. 54 SUCCESSIVE PETITIONS ................................................................................................................................ 54 TEAGUE ISSUES – SEE RETROACTIVITY (THIS HEADING) ..................................................................................... 59 THREE STRIKES RULE .................................................................................................................................. 59 TIMELINESS - SEE LIMITATIONS/TIMELINESS/LACHES ....................................................................................... 59 TRANSCRIPTS ............................................................................................................................................. 59 WAIVER ................................................................................................................................................... 59

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Generally The government’s failure to meet the arraignment date specified in writ of habeas corpus ad prosequendum which transferred defendant from state custody – where he was serving a state prison sentence – to federal custody pursuant to federal indictment, did not invalidate the writ itself, and defendant therefore was not entitled to credit toward his federal sentence for the time he spent in federal custody pursuant to the federal prosecution, nor was he entitled to such credit for the time he spent in state custody after the writ was satisfied and he was returned to the state. Lugo v. Hudson, 785 F.3d 852 (2d Cir. May 13, 2015) (p.c.). Denying defendant’s request to file a successive habeas petition, court holds that the rule announced in Peugh v. United States, 133 S. Ct. 2072 (2013) (holding that retrospective increase in the Sentencing Guidelines range applicable to a defendant created a sufficient risk of a higher sentence to constitute an ex post facto violation) does not constitute “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). Court further holds that defendant’s realization that his prior conviction for DUI should not have enhanced his federal sentence because his blood alcohol level was only .9 at the time of his arrest and the threshold for DUI was .10, was not “newly discovered evidence” because he either knew that at the time of his federal sentencing or would have known it through the exercise of due diligence. Herrera-Gomez v. United States, 755 F.3d 142 (2d Cir. June 17, 2014) (per curiam). Heck v. Humphrey, 512 U.S. 477 (1994), requiring a defendant who brings a 42 U.S.C. § 1983 action that necessarily challenges the validity of his conviction to first show “that the challenged conviction has been reversed, expunged, invalidated, or called into question,” does not apply to a former inmate who, after his conviction was vacated for a Brady violation and who thereafter pleaded guilty, was no longer in custody and therefore was without means to challenge his conviction through habeas corpus. Court observes that the present § 1983 claim does not challenge plaintiff’s second conviction but rather seeks damages resulting from the Brady violation that resulted in his first conviction, which was vacated. Jacobs dissents. Poventud v. City of New York, 715 F.3d 57 (2d Cir. April 19, 2013) (pending decision en banc). Court reverses grant of habeas to state robbery defendant, finding that district court erred in finding that state trial court’s wrongful admission of hearsay violated defendant’s right to due process. Court says, after holding that no Supreme Court case directly holds that the admission of hearsay in violation of state evidentiary rules violates due process, “Under these circumstances, assuming arguendo that Supreme Court cases establish a general principle that the reliance on hearsay testimony to support a conviction can violate the requirement of due process, we could not conclude that the state court’s affirmance of Evans’s conviction, finding any state evidentiary error harmless and Evans’s trial fundamentally fair, was an unreasonable application of that principle.” Evans v. Fischer, 712 F.3d 125 (2d Cir. April 3, 2013) (Lynch). Second Circuit joins other circuits in holding that usual standard of habeas review under the AEDPA – i.e., whether the state court ruling was an unreasonable application of clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1) – applies even where the federal court has conducted its own evidentiary hearing. Wilson v. Mazzuca, 570 F.3d 490 (2d Cir. June 24, 2009) (Cabranes). A habeas corpus petition under 28 U.S.C. § 2241 was the appropriate vehicle to challenge confinement in a federal correctional center rather than a Community Corrections Center (CCC), since petitioner was challenging the place of his confinement rather than attacking the lawfulness of his sentence. Raggi dissents. Levine v. Apker, 455 F.3d 71 (2d Cir. July 10, 2006) (Calabresi).

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When determining a state court decision was contrary to Supreme Court precedent, such precedent is controlling, but nothing in the AEDPA authorizes the circuit court to ignore its own precedents in determining what constitutes a “reasonable application” of Supreme Court law under 28 U.S.C. § 2254(d)(1). Serrano v. Fischer, 412 F.3d 292 (2d Cir. 6/20/2005) (Sotomayor, Sonia). Defendant’s Rule 35 motion was properly treated as a habeas application under 28 U.S.C. 2255. United States v. Rivera, 376 F.3d 93 (2d Cir. 7/22/2004) (Kearse, Amalya Lyle). Court declines to consider merits of defendant’s claim that Bureau of Prisons should consider placing him in a halfway house without regard to Department of Justice’s memo that such placement is illegal, as defendant was not yet incarcerated and in BOP’s custody, and the BOP was therefore not a named defendant. United States v. Arthur, 376 F.3d 93 (2d Cir. 5/11/2004) (Pooler, Rosemary S.). District courts may not sua sponte convert post-conviction motions, putatively brought under some other provisions, into a habeas corpus petition under 28 U.S.C. § 2241. District courts must first give notice, and obtain consent, before doing so. Simon v. United States, 359 F.3d 139 (2d Cir. 2/19/2004) (Calabresi, Guido). Attorney properly had “next friend status” and therefore could pursue habeas petition on behalf of U.S. citizen detained as an enemy combatant. Further, Secretary of Defense Rumsfeld was the appropriate respondent, and the case was properly brought in New York. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 12/18/2003) (Pooler and B.D. Parker) (Certiorari granted and reversed and remanded by Rumsfeld v. Padilla, 524 U.S. 426 (2d Cir. 6/28/2004), in which lower court’s upholding of jurisdiction over detainee’s petition was reversed, and the case was remanded for entry of an order of dismissal without prejudice). Affirming district court’s dismissal, for lack of jurisdiction, of petitioner’s § 2241 petition challenging petitioner’s conviction and sentence where petitioner had previously filed a motion under 28 U.S.C. § 2255 and had not obtained approval to file a second or successive motion under that section, court agrees that the claims asserted by petitioner were within the scope of § 2255 and the district court properly transferred the petition to the circuit court to entertain an application for leave to file a second or successive § 2255 motion. Poindexter v. Nash, 333 F.3d 372 (2d Cir. 6/26/2003) (Kearse, Amalya Lyle). Affirming denial of motion under previous version of Fed.R.Crim.P. 35(a) challenging defendant’s sentence as illegal on various grounds, court rules that various claims were not cognizable under Rule 35(a) and that defendant, to challenge jurisdiction (based on alleged failure to return grand jury indictment in open court or otherwise) or to raise some other issue regarding other aspect of defendant’s conviction, must raise such challenges in a § 2255 or § 2241 petition. United States v. Lika, 344 F.3d 150 (2d Cir. 9/3/2003) (per curiam). “Federal habeas jurisdiction as to claims challenging the invalidity of a federal conviction or sentence is restricted to 28 U.S.C. § 2255 except to the extent that remedy is ‘inadequate or ineffective.’ Where a habeas petitioner asserts actual innocence as part of an effort to argue the inadequacy or ineffectiveness of § 2255, he must both state a colorable basis for that claim and demonstrate his inability effectively to have raised it at an earlier time.” Here, petitioner cannot satisfy this standard. His sufficiency challenge to his § 924(c) conviction could have been raised on direct appeal without need for the Supreme Court’s subsequent decision in Muscarello v. United States, 524 U.S. 125. As for his Richardson-based claim of actual innocence on his CCE conviction (i.e., that jury must unanimously agree as to the specific violations of the drug laws that make up the “continuing series” element of a § 848 crime), the jury verdict of guilty on four substantive narcotics violations conclusively negates this

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assertion. Accordingly, court holds that the district court did not err in dismissing petitioner’s § 2241 habeas petition for lack of jurisdiction. Cephas v. Nash, 328 F.3d 98 (2d Cir. 4/30/2003) (Raggi, Reena). Court affirms decision of district court construing petitioner’s 28 U.S.C. § 2241 petition to vacate his sentence as a second § 2255 motion, and transferring it to the circuit court for possible certification under § 2244. Relief generally available under § 2254 may be sought under §2241 only where § 2254 is unavailable, and denial of relief would be unconstitutional per Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). Here, petitioner would not be entitled to relief even were this a first petition, because claim was based on Apprendi, which is not retroactive on habeas. Thus, it is not the § 2255 gate-keeping provisions that are responsible for petitioner’s inability to raise his Apprendi claim, and therefore there can be no “serious constitutional question” raised by requiring petitioner to proceed under that section. Love v. Menifee, 333 F.3d 69 (2d Cir. 6/16/2003) (Sack, Robert D.). Court affirms the denial of defendant’s habeas corpus petition because the issue raised therein, alleging a violation of Bruton, had previously been litigated, and the Supreme Court’s decision in Gray v. Maryland, 523 U.S. 185 (1998), does not establish a new rule of constitutional law upon which defendant could reopen the issue, but rather was available to him during his direct appeal. United States v. Sanin, 252 F.3d 79 (2d Cir. 5/25/2001) (per curiam). 28 U.S.C. § 2255 is not inadequate or ineffective, such that a federal prisoner may file a § 2241 petition, simply because a prisoner cannot meet the AEDPA’s gatekeeping requirements, provided that the claim the prisoner seeks to raise was previously available on direct appeal or in a prior § 2255 motion. Defendant’s claim, that the sentencing court failed to state its reasons for sentencing defendant at a particular point within the assigned Guidelines range under 18 U.S.C. § 3553(c)(1), was such a claim. Court also observes that the AEDPA limits second and successive § 2241 petitions brought by federal prisoners, as well as § 2255 petitions. Jiminian v. Nash, 245 F.3d 144 (2d Cir. 4/2/2001) (Sotomayor, Sonia). Court observes that a motion under 28 U.S.C. § 2241 generally challenges the execution of a federal prisoner’s sentence, including such matters as the administration of parole, computation of a prisoner’s sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions. Jiminian v. Nash, 245 F.3d 144 (2d Cir. 4/2/2001) (Sotomayor, Sonia). Court agrees that petition to expunge the Bureau of Prisons’ disciplinary sanctions from his record, including the loss of good time credits, viewed as a challenge to the execution of his sentence rather than underlying conviction, was properly brought via an application for a writ under 28 U.S.C. § 2241. Carmona v. United States Bureau of Prisons, 243 F.3d 629 (2d Cir. 3/20/2001) (Cardamone, Richard J.). State’s insistence on certainty when assessing claim of effective assistance of counsel, represents an “unreasonable application” of “clearly established Federal law,” per 28 U.S.C. § 2254(d)(1), in light of the requirement that a petitioner need only show that but for counsel’s errors there was a “reasonable probability” that the result of the plea bargaining process would have been different. To meet this standard, defendant need not establish by a preponderance of the evidence that the result would have been different. Moreover, test is an objective one, and therefore should be made without regard for the idiosyncrasies of the particular decisionmaker. Mask v. McGinnis, 233 F.3d 132 (2d Cir. 11/15/2000) (Parker, Fred I.). Denial of habeas petition remanded for consideration of (1) whether petitioner’s confrontation rights were violated by admission of codefendant’s hearsay testimony implicating him with an “interlocking confession”; (2) whether petitioner forfeited the claim by failing to raise it on direct appeal;

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and (3) whether any violation of petitioner’s confrontation rights substantially and injuriously affected the jury’s verdict so as to require vacating the conviction. Court also finds that there is no per se rule that a declaration by a criminal, made to a friend, admitting the declarant’s participation in a crime and naming a third person as a co-participant, without effort to diminish the declarant’s responsibility by increasing that of the third person, is so inherently reliable as evidence of the third person’s guilt that such hearsay may constitutionally be received to convict the third person of the offense, notwithstanding his inability to cross-examine the declarant. Mingo v. Artuz, 174 F.3d 73 (2d Cir. 4/5/1999) (Leval, Pierre N.). Court rejects petitioner’s argument that his claim that a special assessment was improperly levied is cognizable under either § 2255 or § 2241. He failed to raise the issue in his direct appeal or in his first habeas petition, and he failed to show either that his default resulted in a fundamental miscarriage of justice or that he was actually innocent. Underwood v. United States, 166 F.3d 84 (2d Cir. 1/22/1999) (Leval, Pierre N.). Failure to raise claim based on ineffective assistance of counsel in first habeas petition is excused under Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), because defendant was represented in that petition by the same attorney who represented him at trial and on appeal. Bloomer v. United States, 162 F.3d 187 (2d Cir. 12/3/1998) (Cardamone, Richard J.) (Billy-Eko abrogated by Massaro v. United States, 538 U.S. 500 (2d Cir. 4/23/2003), in which the Court held that where defendant was represented by new counsel on appeal, and the prisoner’s claim of ineffective assistance of counsel was based solely on the trial record, the defendant’s failure to assert the claim on direct appeal did not bar the claim from consideration on collateral review). Because of the new restrictions on successive habeas petitions, district courts should not recharacterize a motion purportedly made under some other rule as a motion made under 28 U.S.C. § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so characterized. Adams v. United States, 155 F.3d 582 (2d Cir. 8/20/1998) (per curiam). Although testimony revealing that petitioner was a convicted felon may have been an error of state law, it was not error of federal constitutional dimension justifying a writ of habeas corpus. Such error will not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice. Although trial court should have given the jury a cautionary instruction, as it had advised the parties it would, in light of petitioner’s election not to remind the court to give such an instruction, the failure to give the instruction was not so egregious as to deny defendant due process. Dunnigan v. Keane, 137 F.3d 117 (2d Cir. 2/19/1998) (Kearse, Amalya Lyle). Citing the “special circumstances of these appeals,” including a sharp split with the New York Court of Appeals, en banc court decides to reach the merits of courtroom closure cases, rather than invoke the “new rule” doctrine of Teague v. Lane, 489 U.S. 288 (1989). Walker and Jacobs would decline to reach the merits. Ayala v. Speckard, 131 F.3d 62 (2d Cir. 12/3/1997) (Newman, Jon O.). Interpreting 28 U.S.C. § 2244(b)(3)(D), requiring the Court of Appeals to act on application to file successive petition within 30 days, court concludes that proper approach is to (1) start the 30-day clock when the motion, and all papers required for a reasoned decision, including the transcript where necessary, have been filed with the Court of Appeals, (2) adjudicate the motion within 30 days in the general run of matters, and (3) exceed the 30-day limit only where an issue requires a published opinion that cannot reasonably be prepared within 30 days, consistent with the court’s other obligations. Galtieri v. United States, 128 F.3d 33 (2d Cir. 10/29/1997) (Newman, Jon O.).

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Collateral relief under § 2255 is appropriate when there has been an intervening change in the substantive criminal law that establishes that the petitioner’s conviction is based on conduct which is no longer regarded as criminal. United States v. Canady, 126 F.3d 352 (2d Cir. 9/24/1997) (Walker, Jr., John M.). Title 28 U.S.C. § 2244(b)(3)(D), requiring the Court of Appeals to act within 30 days, and 28 U.S.C. § 2244(b)(3)(E), limiting the appealability of court’s decision to grant or deny request to file a successive petition, apply to motions made under 28 U.S.C. § 2255. Triestman v. United States, 124 F.3d 361 (2d Cir. 8/28/1997) (Calabresi, Guido). 28 U.S.C. § 2255 is no longer available to collaterally attack, through a successive petition, a weapons possession conviction undermined by Bailey v. United States, 516 U.S. 137 (1995), because Bailey did not create a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, nor does it constitute “newly discovered evidence” as required under the AEDPA; however, § 2255 provides that the traditional writ of habeas corpus, 28 U.S.C. § 2241, will be available if § 2255 is “inadequate or ineffective” to test the legality of a petitioner’s detention, a phrase the court interprets to make § 2241 available if necessary to avoid the serious constitutional questions otherwise presented by the unavailability of the writ where a defendant claims he is factually innocent as a result of a previously unavailable statutory interpretation, in possible violation of the Eighth Amendment and the Due Process Clause (and leaving aside a possible violation of the Suspension Clause, U.S. Const. art. I § 9, cl.2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.”)). Court raises, but does not answer, question whether petitioner also could petition for an extraordinary writ under the All Writs Act, 28 U.S.C. § 1651, such as a writ of error coram nobis and/or a writ of audita querela. Triestman v. United States, 124 F.3d 361 (2d Cir. 8/28/1997) (Calabresi, Guido). Court observes, at n.7, that the Second Circuit has interpreted the restriction embodied in Teague v. Lane, 489 U.S. 288 (1989), to apply only to new rules of criminal procedure, leaving new rules of substantive, non-constitutional law to be governed by Davis v. United States, 417 U.S. 333 (1974). Triestman v. United States, 124 F.3d 361 (2d Cir. 8/28/1997) (Calabresi, Guido). Where defendant sought erroneously to correct unlawful sentence under Fed.R.Crim.P. 36, court should have sua sponte considered the application as a petition under 28 U.S.C. § 2255. United States v. DeMartino, 112 F.3d 75 (2d Cir. 4/23/1997)(Kearse, Amalya Lyle). Although to exhaust state remedies, petitioner must have presented his claim to the highest court capable of reviewing the claim, here, petitioner’s leave application was denied, so court would look to whether the claim was presented to the appellate division, which it was. Dorsey v. Kelly, 112 F.3d 50 (2d Cir. 4/9/1997) (Calabresi, Guido). Collateral review is available under 28 U.S.C. § 2255 where “the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 354 (1994). Siddiqi v. United States, 98 F.3d 1427 (2d Cir. 10/31/1996) (Winter, Jr., Ralph K.) Court discusses the requirement of the Antiterrorism and Effective Death Penalty Act of 1996 that a petitioner obtain permission from the circuit court to file a successive habeas petition per 28 U.S.C. §§ 2244 and 2255. Court also observes that the district court, having received the petition, properly transferred it to the circuit court per 28 U.S.C. § 1631. Liriano v. United States, 95 F.3d 119 (2d Cir. 8/28/1996) (per curiam).

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Petitioner’s claim that the fine imposed on him was improper because it exceeded the applicable range under the Sentencing Guidelines in effect at the time he committed the offense is colorable, but is procedurally barred because petitioner failed to raise the claim on direct appeal. Collateral attack on a final judgment in a criminal case is generally available under 28 U.S.C. § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice. Graziano v. United States, 83 F.3d 587 (2d Cir. 5/10/1996) (per curiam). On rehearing, court holds that the Antiterrorism and Effective Death Penalty Act of 1996 does not apply retroactively to habeas corpus petitions not involving death sentences filed prior to the statute’s enactment. Boria v. Keane, 99 F.3d 492 (2d Cir. 5/3/1996) (Knapp, Whitman). Denial of the right to be present at sentencing may be attacked in a proceeding under 28 U.S.C. § 2255. United States v. Agard, 77 F.3d 22 (2d Cir. 2/15/1996) (Walker, Jr., John M.). Prosecutor’s alleged wrongful use of the phrase “to the exclusion of a moral certainty” five times in summation was not objected to and therefore would not be considered as an independent ground for reversal. The asserted error would, however, be taken into account in evaluating petitioner’s properly raised issue concerning the court’s instruction regarding reasonable doubt (which court finds to have been erroneous but not reversible error). Newman, C.J., dissents. Chalmers v. Mitchell, 73 F.3d 1262 (2d Cir. 1/3/1996) (Meskill, Thomas J.). Court disapproves grant of habeas and reduction of sentence by three months to permit defendant to qualify for Intensive Confinement Center Program (“shock incarceration”). Defendant had agreed in plea agreement not to appeal sentence if within stipulated range, and habeas should not be used as a substitute for a waived appeal. Defendant did not show “cause” for his attorney’s failure to accurately address the issue at the time of the initial sentence. United States v. Pipitone, 67 F.3d 34 (2d Cir. 10/3/1995) (Mahoney, Daniel J.). Case remanded to give petitioner, now represented by counsel, opportunity to raise Strickland and Brady claims not raised in his pro se petition. Court also observes that whether or not petitioner has shown cause and prejudice for his procedural default of prosecutorial misconduct claim may depend in part on the viability of an effective assistance or Brady claim. Dorsey v. Irvin, 56 F.3d 425 (2d Cir. 5/30/1995) (Winter, Jr., Ralph K.). Grant of habeas corpus is reversed to robbery defendant at whose trial codefendant statements were admitted in violation of the Bruton rule. Applying Brecht v. Abrahamson, 507 U.S. 619 (1993, court finds that error did not have “substantial and injurious effect or influence” in determining the jury’s verdict. Samuels v. Mann, 13 F.3d 522 (2d Cir. 12/30/1993) (Miner, Roger J.). Habeas corpus may not be used to relitigate questions which were raised and considered on direct appeal except where an intervening change in the law has taken place or where the issues were not raised at all on direct appeal due to ineffectiveness of counsel. Here, although counsel failed to cite particular case in support of issue, the issue itself was raised on appeal. Underwood v. United States, 15 F.3d 16 (2d Cir. 12/20/1993) (Feinberg, Wilfred). Court agrees to hear claim on collateral review that petitioner was correct when he urged, on direct appeal, that trial court erred in failing to instruct jury that predicate RICO acts must be interrelated; error, however, was harmless. Ianniello v. United States, 10 F.3d 59 (2d Cir. 11/18/1993) (Lumbard, Edward J.) (Superseded by statute as stated in Triestman v. United States, 124 F.3d 361 (2d Cir. 8/28/1997), which noted that while AEDPA bars successive petitions under 28 U.S.C.S §2255 unless they

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were based on newly discovered evidence or a new rule of law, one can challenge their conviction on the grounds of being innocent through a writ of habeas corpus under 28 U.S.C.S. §2241(c)(3)). Habeas remedy is not court’s to grant unless a petitioner has established a constitutional violation affecting the validity of the verdict. Brown v. Doe, 2 F.3d 1236 (2d Cir. 8/19/1993) (Jacobs, Dennis G.). Concurring in denial of writ, Chief Judge Oakes comments on the “Catch-22” nature of the law of federal habeas corpus, particularly regarding procedural defaults, and the emphasis on guilt/innocence, instead of the fairness of trial. Gonzalez v. Sullivan, 934 F.2d 419 (2d Cir. 5/28/1991) (Cardamone, Richard J.). Affirming denial of habeas, where constitutional errors were found harmless upon district court’s rejection of state appellate court’s ruling that certain evidence at petitioner’s trial should have been suppressed. Habeas corpus court is a court of equity and, per 28 U.S.C. § 2243, may hear and determine the facts, and dispose of the matter as law and justice require. When a federal district court, on habeas review, has reason to believe that a state appellate court erroneously reversed a state trial court ruling on an issue of federal law that directly bears on the constitutionality of petitioner’s conviction, the district court may re-examine that issue in the exercise of its sound judicial discretion. In so ruling, court rejects several arguments based on collateral estoppel, Stone v. Powell, 428 U.S. 465 (1976), and the existence of an allegedly adequate and independent state ground for the appellate court’s suppression order. Pinkney v. Keane, 920 F.2d 1090 (2d Cir. 12/7/1990) (Oakes, James L.). General bar against relitigating in habeas petition an issue decided on direct appeal applies whether issue was raised on appeal by the government or by the defendant himself. United States v. Jones, 918 F.2d 9 (2d Cir. 10/30/1990) (per curiam). Where district judge heard testimony of two key witnesses, he could validly reject magistrate’s recommendation that petition be granted. Grassia v. Scully, 892 F.2d 16 (2d Cir. 12/8/1989) (Altimari, Frank X.). Court applies traditional rule that non-constitutional and nonjurisdictional claims are generally procedurally foreclosed under § 2255 if not raised on direct appeal, and denies review of claim that the Supreme Court of New York cannot be considered an “enterprise” under RICO, 18 U.S.C. § 1961(4). Brennan v. United States, 867 F.2d 111 (2d Cir. 1/20/1989) (Meskill, Thomas J.). While reversing grant of habeas corpus on sufficiency grounds, court remands for consideration of Bruton issue which was exhausted but not previously raised on habeas. Reddy v. Coombe, 846 F.2d 866 (2d Cir. 5/16/1988) (Kearse, Amalya Lyle). Abuse of Process/Writ District court did not err when it invoked abuse of the writ doctrine and dismissed appellant’s habeas petition seeking relief from deportation, where appellant had filed a similar petition six years earlier and had absconded after it was denied on the merits rather than pursue an appeal. Esposito v. Ashcroft, 392 F.3d 549 (2d Cir. 12/23/2004) (per curiam). District court erred in dismissing petitioner’s claim of ineffective assistance of counsel on theory that claim did not advance a new “ground” for relief, as petitioner had argued ineffectiveness of counsel on his direct appeal. Here, however, petitioner’s claim of ineffective assistance of counsel based on defense counsel’s asserted conflict of interest was properly before the court because it was based on matters outside the record and could not have been raised on direct appeal. Prior claims of

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ineffectiveness, by contrast, were required to be raised on direct appeal or would have been deemed waived, absent showing of “cause and prejudice.” District court correctly dismissed other claims, however, that previously had been argued and rejected in essentially the same form. Court also observes that the suggestion it made in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), that appellate counsel call the court’s attention to any ineffectiveness claims that counsel deems to require further evidentiary development, thereby allowing the court to either remand the claim to the district court or leave the defendant to his post-conviction remedies, is not a mandatory requirement. Riascos-Prado v. United States, 66 F.3d 30 (2d Cir. 9/13/1995) (Mahoney, Daniel J.) (Billy-Eko abrogated by Massaro v. United States, 538 U.S. 500 (2d Cir. 4/23/2003), in which the Court held that where defendant was represented by new counsel on appeal, and the prisoner’s claim of ineffective assistance of counsel was based solely on the trial record, the defendant’s failure to assert the claim on direct appeal did not bar the claim from consideration on collateral review). Under limited circumstances, district court may, under Rule 9(b) or 4(b) of the habeas rules, sua sponte dismiss a habeas corpus petition as an abuse of the writ and may do so without prior notice to petitioner where the deficiency is in meeting the “prejudice” as opposed to the “cause” requirement. Here, the lack of actual prejudice as to the asserted sentencing errors is beyond question, as the asserted errors were not in fact committed. Femia v. United States, 47 F.3d 519 (2d Cir. 2/8/1995) (Walker, Jr., John M.). Vacating judgment dismissing habeas for abuse of the writ, court holds that district courts may not dismiss for abuse of the writ without having provided the petitioner with notice and an adequate opportunity to respond. Court raises, but does not answer question whether the district court may dismiss a petition for abuse of the writ sua sponte. Lugo v. Keane, 15 F.3d 29 (2d Cir. 1/25/1994) (per curiam). Dismissal of habeas petition for abuse of the writ, under McCleskey v. Zant, 499 U.S. 467 (1991), vacated and remanded. Although defendant was aware at the time of sentencing that presentence report alleged he was a member of “Jamaican Mafia,” he was not aware that it also alleged he shared responsibility for up to 300 murders, a claim upon which sentencing judge may have relied. This latter claim was substantially different from that which he could have raised based solely on his alleged membership in criminal organization. Additionally, court erred in dismissing petition without according petitioner an opportunity to respond to the claim that he had abused the writ. Gayle v. Mann, 966 F.2d 81 (2d Cir. 6/5/1992) (Oakes, James L.). Actual Innocence Reversing denial of habeas petition brought by state court inmate convicted of seconddegree murder, court holds – after first concluding that inmate was not entitled to equitable tolling based on extraordinary circumstances and reasonable diligence – that procedural default caused by defendant’s failure to file habeas corpus petition within the one-year limitations period may be excused by a showing of actual innocence based on evidence not admitted at trial, i.e., that more likely than not any reasonable juror would have reasonable doubt. Here, requisite showing was made by new testimony of forensic pathologist that victim was killed at a time when defendant had an unchallenged alibi. Rivas v. Fischer, 687 F.3d 514 (2d Cir. July 9, 2012) (Cabranes). In decision affirming denial of habeas relief in notorious sex abuse case, court raises but does not resolve issue whether there is a federal Constitutional right to be released upon proof of actual innocence. Friedman v. Rehal, 618 F.3d 142 (2d Cir. August 16, 2010) (Korman, D.J.). Adjournments/Continuances/Delays/Recesses

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Defendant was not entitled to habeas relief as a result of appellate delay, since his murder conviction eventually was affirmed, and habeas is not available to redress alleged emotional anguish and stress. Rodriguez v. Weprin, 116 F.3d 62 (2d Cir. 6/19/1997) (Murtha, J. Garvin). All Writs Act District court order vacating prior conviction is vacated, as the district court cited the All Writs Act, 28 U.S.C. § 1651, as the sole jurisdictional basis for its ruling. The All Writs Act, however, does no more than supplement the express powers of a court in cases in which jurisdiction already exists. Equitable vacaturs -- here to avoid deportation of supposedly deserving individual -- would trench upon the presidential pardon power. United States v. Tablie, 166 F.3d 505 (2d Cir. 1/29/1999) (per curiam). Distinguishing Michael v. INS, 48 F.3d 657 (2d Cir. 1995), court holds that petitioner’s failure to pursue the normal, statutorily contemplated avenues of temporary relief open to him once the deportation order against him was entered, precludes his invocation of the All Writs Act, 28 U.S.C. § 1651(a). Kyei v. INS, 65 F.3d 279 (2d Cir. 9/12/1995) (Calabresi, Guido). Amendments to Petitions District court erred when it considered petitioner’s new habeas petition under 28 U.S.C. § 2241 to be a “successive petition” where he also had another petition pending. In such cases, the new claim should be construed as a motion to amend his previous petition. United States v. Grullon, 374 F.3d 137 (2d Cir. 6/30/2004) (per curiam). Per 28 U.S.C. § 2242, a petition for habeas corpus may be amended or supplemented as provided in the rules of procedure applicable to civil action. Per Rule 11 of the Rules Governing 2254 Cases, “the Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.” Fed.R.Civ.P. 15, governing amendments, is applicable to habeas petitions, and permits amendments even where the statute of limitations has run when the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. Issue is whether the original complaint gave the defendant fair notice of the newly alleged claims. Fama v. Commissioner of Correctional Services, 235 F.3d 804 (2d Cir. 12/21/2000) (Calabresi, Guido). Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) Generally Under Carey v. Musladin, 127 S.Ct. 649 (2006), federal courts must look only to the holdings of Supreme Court cases – not its dicta and not circuit court cases – to determine whether law is “firmly established” for purposes of the AEDPA. Rodriguez v. Miller, 499 F.3d 136 (2d Cir. August 29, 2007) (McLaughlin). A first § 2255 petition that has properly been dismissed as time barred under AEDPA has been adjudicated on the merits, such that authorization from the circuit court is required before filing a second or successive § 2255 petition. Such was the case for these two petitioners, who failed to demonstrate that their second petition fell within one of the exceptions to the prohibition against successive petitions. Villanueva v. United States, 346 F.3d 55 (2d Cir. 9/15/2003) (Walker, Jr., John M.). Interpreting AEDPA, court decides to first address the proper interpretation of Supreme Court law regarding the double jeopardy effect of a dismissal based on the statute of limitations, rather than

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simply decide whether the state court’s interpretation of the law was a reasonable one. Sack concurs. Kruelski v. State of Conn., 316 F.3d 103 (2d Cir. 2/11/2003) (Calabresi, Guido). For an issue to have been “adjudicated on its merits” triggering deferential standard of review under the AEDPA, it is only necessary that the claim be disposed of on the merits, as opposed to on a procedural or other ground, and the state court need not refer to the federal claim or to federal law. Winter dissents. Hines v. Miller, 318 F.3d 157 (2d Cir. 1/24/2003) (Walker, Jr., John M.). Reversing grant of habeas corpus, court declines to reach alternative grounds for relief because petitioner has neither obtained a certificate of appealability permitting review of his rejected claims nor made a showing that would entitle him to such a certificate. Grotto v. Herbert, 316 F.3d 198 (2d Cir. 1/14/2003) (Kearse, Amalya Lyle). Affirming denial of habeas that argued a due process violation when court refused to honor plea bargain based on defendant’s violation of supposedly ambiguous provision not to commit further crimes, court holds that even if the provision was ambiguous, no Supreme Court opinion requires that all conditions placed on a sentence promised in a plea bargain be communicated to the defendant unambiguously, and in any event, the state courts did not unreasonably apply this supposed Supreme Court rule. Further, where agreement required defendant to prove to the court that he should not go to prison, “no rational person could believe that a new crime would prove that he should not go to state prison….” Mask v. McGinnis, 252 F.3d 85 (2d Cir. 5/25/2001) (per curiam). District court should not have reached the merits of second habeas petition, but rather should have referred it to the circuit court as gatekeeper for successive petitions under the AEDPA. Treating petitioner’s motion for a certificate of appealability as a motion for leave to file a successive petition, court denies the motion because the ineffectiveness claim sought to be raised could have been raised on the initial petition. Additionally, court observes that whether petitioner defines his petition as one under 28 U.S.C. § 2255 -- directed to the sentence as imposed -- or 28 U.S.C. § 2241 -- directed to the sentence as executed -- court should construe it under the most appropriate section. Corrao v. United States, 152 F.3d 188 (2d Cir. 8/10/1998) (McLaughlin, Joseph A.). The denial of an initial § 2255 motion on grounds of procedural default (i.e., for failure to raise a claim on direct appeal, which failure is not excused by a showing of cause and prejudice) constitutes a disposition on the merits, such that any subsequent § 2255 motion will require authorization pursuant to §§ 2255 and 2244(b)(3)(A). Carter v. United States, 150 F.3d 202 (2d Cir. 7/21/1998) (per curiam) Declining to follow its prior dicta, court holds that prisoners whose convictions became final prior to the effective date of the Antiterrorism Act’s statue-of-limitations provision should have been allowed a period of one year after that effective date in which to file petitions pursuant to 28 U.S.C. § 2254 or motions under § 2255. See Ross v. Artuz, 150 F.3d 97 (2d Cir. June 24, 1998) (Kearse, Amalya Lyle); Joseph v. McGinnis, 150 F.3d 103 (2d Cir. June 24, 1998) (per curiam); Rosa v. Senkowski, 148 F.3d 134 (2d Cir. June 24, 1998) (per curiam). Mickens v. United States, 148 F.3d 145 (2d Cir. 6/24/1998) (Kearse, Amalya Lyle). Court holds: (1) under the AEDPA, an appeal from a denial of a petition under 28 U.S.C. § 2255 must raise a constitutional claim, although the district court petition is not so limited; (2) this limitation applies to appeals filed after the effect date of the Act even if the district court petition was filed before the date of Act [but see Lindh v. Murphy, 521 U.S. 320, 323-29 (1997)]; (3) requests for a certificate of appealability under the Act must initially be presented to the district court; and (4) where appellant’s papers make a substantial showing of a denial of a constitutional right, court will grant the COA. If the papers clearly show that no constitutional right was violated, the COA will be denied. If the matter is

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unclear, the notice of appeal will be treated as a request for a COA, as contemplated by Fed.R.App.P. 22, and court will afford appellant an opportunity to make the “substantial showing of the denial of a constitutional right,” as contemplated by § 2253. Lozada v. United States, 107 F.3d 1011 (2d Cir. 3/7/1997) (Newman, Jon O.) (Abrogated by United States v. Perez, 129 F.3d 255 (2d Cir. 11/7/1997), which overruled Lozada to the extent it is inconsistent with the following conclusion: the COA requirement for § 2255 appeals does not apply where the underlying motion was filed before April 24, 1996, the effective date of the AEDPA). The gatekeeping provisions of the Antiterrorism and Effective Death Penalty Act of 1996 do not require a petitioner to seek authorization from the court of appeals to file a petition for writ of habeas corpus after a prior petition is dismissed without prejudice for failure to exhaust state remedies. Camarano v. Irvin, 98 F.3d 44 (2d Cir. 10/22/1996) (per curiam). Court holds: (1) the time limits of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) do not apply to a habeas petition filed before the effective date of the Act; (2) the certificate of appealability provision of the AEDPA is applicable to such a petition, and a request for a certificate of probable cause, satisfying the standards of a certificate of appealability, may be treated as a certificate of appealability; and (3) in this case, a limited certificate should be issued, limited to the issue addressing the trial court’s reasonable doubt charge. Reyes v. Keane, 90 F.3d 676 (2d Cir. 7/29/1996) (Newman, Jon O.). Certificate of Appealability The new requirement of the AEDPA, requiring that petitioners under 28 U.S.C. § 2255 obtain a Certificate of Appealability from the Court of Appeals as a prerequisite to bringing an appeal, does not apply to an appeal that has already been briefed. Thye v. United States, 96 F.3d 635 (2d Cir. 9/24/1996) (per curiam). Retroactivity Holding that the AEDPA of 1996 does not apply retroactively in non-capital cases, court applies the presumption, “deeply rooted in our jurisprudence,” that absent some clear signal from Congress, a statute will not apply retroactively. Boria v. Keane, 99 F.3d 492 (2d Cir. 5/3/1996) (Knapp, Whitman). Standard of Deference Granting habeas to state court defendant on grounds of ineffective assistance of counsel, court holds it will not grant AEDPA deference to state appellate court decision that did not dispose of case on merits but rather preceded its discussion of the merits with “a contrary-to-fact” construction, i.e., “if the merits were reached, the result would be the same.” Such language is not the same as an alternative holding, such as a court’s finding that “petitioner’s claim is found to be unpreserved, and, in any event, without merit.” Bell v. Miller, 500 F.3d 149 (2d Cir. August 31, 2007) (Jacobs). Interpreting section 2254(d)(1)’s phrase, “adjudicated on the merits,” court finds that habeas court will consider an issue to have been adjudicated on the merits when the state court (1) disposes of the claim “on the merits” and (2) reduces its disposition to judgment, whether or not the court explicitly discusses appellant’s argument or simply affirms without discussion. When determining whether a state court’s disposition of a petitioner’s claim is on the merits, federal court will consider (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court’s opinion suggests reliance upon procedural grounds rather than a determination on the merits. Here, state court in

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fact denied petitioner’s ineffective assistance of appellate counsel claim on the merits, as there was no evidence the coram nobis was rejected on non-substantive grounds. Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 8/14/2001) (Walker, Jr., John M.). In amended opinion, court declines to determine whether 28 U.S.C. § 2254(d)’s standard of deferential review, which applies where the state court had “adjudicated the merits,” in fact will apply where state court did not address the merits of petitioner’s constitutional claim, but nonetheless denied the petitioner. (Note, however, that the issue was resolved adversely to the petitioner in Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. August 14, 2001) (Walker)). Washington v. Schriver, 255 F.3d 45 (2d Cir. 6/5/2001) (Katzmann, Robert A.). Appeal Where petitioner was informed of requirement that he appeal magistrate’s ruling to district judge within 10 days but did not, his appeal to the Second Circuit could be dismissed, although bar is not jurisdictional and may be excused in the interests of justice. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1/22/1993) (Mahoney, Daniel J.). To obtain a certificate of probable cause, the petitioner must demonstrate both that the petition is not frivolous and that it presents some question deserving of appellate review. Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 5/29/1990) (per curiam). Appointment of Counsel Remanding case, court holds that district court violated Rule 8(c) of the Federal Rules Governing § 2254 petitions when it refused to appoint counsel for petitioner previous to conducting evidentiary hearing. Graham v. Portuondo, 506 F.3d 105 (2d Cir. October 3, 2007) (per curiam). Habeas corpus petitioner had no right to representation by counsel and no right to choose the particular counsel appointed to represent her. Here, record did not sustain a finding of indigency, and court therefore denies appointment of counsel. Green v. Abrams, 984 F.2d 41 (2d Cir. 1/12/1993) (Restani, Jane A.). Court remands case of pro se habeas petitioner and directs that counsel be appointed. Elcock v. Henderson, 902 F.2d 219 (2d Cir. 5/3/1990) (per curiam). Available Relief Generally Court denies state court petitioner’s application to file a successive habeas petition stemming from the denial of her application for a writ of error coram nobis alleging ineffective assistance of appellate counsel, holding that alleged errors in a post-conviction proceeding are not grounds for review under 28 U.S.C. § 2254 because federal law does not require states to provide post-conviction mechanisms for seeking relief. Word v. Lord, 648 F.3d 129 (2d Cir. May 13, 2011) (per curiam). Court affirms grant of new trial to state habeas petitioner alleging ineffective assistance of appellate counsel, rather than remand to the state court for a new state appeal, given the passage of time and the state courts’ previous rejection of what the federal courts concluded was a meritorious argument. Ramchair v. Conway, 601 F.3d 66 (2d Cir. April 2, 2010) (Sack).

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Court agrees that habeas action by state defendant who waited six years for brief to be filed is not mooted by affirmance of conviction and that delay violated due process under Barker v. Wingo, 407 U.S. 514 (1972), but holds that remedy should generally not be release of properly convicted defendant; where appeal is not yet resolved, conditional order should be entered, and additionally, prisoner may bring action for damages under 42 U.S.C. § 1983. Simmons v. Reynolds, 898 F.2d 865 (2d Cir. 3/12/1990) (Pratt, George C.). 28 U.S.C. § 455(a)’s “appearance of impropriety” standard is not mandated by the Due Process Clause, and court doubts that an appearance of impropriety under § 455(a) without more, constitutes the type of “fundamental defect” that would justify vacating an otherwise lawful sentence under 28 U.S.C. § 2255. Cf. Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986); Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) (civil judgment can be attacked per Rule 60(b) for appearance of impartiality). Hardy v. United States, 878 F.2d 94 (2d Cir. 6/30/1989) (Newman, Jon O.). Convention Against Torture Federal courts have jurisdiction under 28 U.S.C. § 2241 to consider claims arising under the Convention Against Torture, as implemented by the Foreign Affairs Reform and Restructuring Act (FARRA), and the regulations promulgated thereunder. Petitioner’s argument on appeal challenging the BIA’s application of the particular facts to the relevant law falls within the permissible scope of habeas review. Petitioner failed to prove, however, that he would be tortured for deserting the military should he be returned to China. Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2/6/2003) (Cabranes, Jose A.). Parole State (as opposed to federal) prisoners such as petitioner who wish to mount a federal habeas challenge to parole revocation must do so under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241 (§ 2241 not being available to state prisoners), and the statute of limitations period imposed by 28 U.S.C. § 2241(d)(1) applies to the petitioner’s challenge to the state’s revocation of his parole. Court vacates and remands, however, to provide petitioner an opportunity to withdraw his petition and thereby avoid unintentionally exhausting his right to petition for federal habeas corpus relief on other grounds. Cook v. New York State Division of Parole, 321 F.3d 274 (2d Cir. 2/25/2003) (Sack, Robert D.). Restitution Court answers in the negative question whether a federal habeas corpus petition under 28 U.S.C. § 2255 may include a challenge to an order of restitution imposed as part of the sentence, where that order does not amount to custody, although another of the issues raised does concern defendant’s custody. Kaminski v. United States, 339 F.3d 84 (2d Cir. 8/6/2003) (Calabresi, Guido). Burden of Proof Court provides extensive discussion of the standard of review applicable to federal court consideration of habeas corpus petitions challenging state court judgments, under 28 U.S.C. § 2254(d), as amended in 1996 by the AEDPA, and which provides that habeas is not available with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See Williams v. Taylor, 529 U.S. 362 (2000). Although finding “troubling” petition alleging due process violations arising from recommitment of a state court defendant after entering a plea of not responsible by

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reason of mental disease or defect, court nonetheless denies the claims. Francis S. v. Stone, 221 F.3d 100 (2d Cir. 8/9/2000) (Newman, Jon O.). Burden of proof is on petitioner to show actual prejudice under the test of Brecht v. Abramson, 507 U.S. 619 (1993). Bentley v. Scully, 41 F.3d 818 (2d Cir. 12/1/1994) (Skretny, William M.). Court leaves open who bears the burden of proof on collateral review under the Brecht/Kotteakos standard. Ayala v. Leonardo, 20 F.3d 83 (2d Cir. 4/4/1994) (Oakes, James L.). Petitioner bears burden of proof at habeas proceeding, claiming that he did not knowingly and intelligently waive his right to be present at trial during hospitalization. Polizzi v. United States, 926 F.2d 1311 (2d Cir. 2/25/1991) (Daly, T.F. Gilroy). Substantial and Injurious Effect Petitioner was not entitled to habeas corpus relief upon claim, though correct, that he should not have been separately convicted under 21 U.S.C. §§ 846 and 848, as the error did not have a substantial and injurious effect, as required under Brecht v. Abrahamson, 507 U.S. 619 (1993). Underwood v. United States, 166 F.3d 84 (2d Cir. 1/22/1999) (Leval, Pierre N.). Certificate of Appealability Court remands to district court because it failed to identify the particular issues as to which it had granted petitioner a certificate of appealability. Blackman v. Ercole, 661 F.3d 161 (2d Cir. October 27, 2011) (per curiam). A Certificate of Appealability is required to appeal a district court’s denial of a motion, under Fed.R.Civ.P. 59(e) to alter or amend a prior judgment denying a habeas petition under 28 U.S.C. § 2254. Here, petitioner’s motion, “like his petition, remains incomprehensible even after a fair effort to discover what is on his mind.” Jackson v. Albany Appeal Bureau Unit, 442 F.3d 51 (2d Cir. February 8, 2006) (Jacobs). Although COA granted by district court failed to expressly include the district court’s procedural default finding, court may construe the filing of a notice of appeal to be a request to the circuit court for a COA on all issues raised in the appeal. Cotto v. Herbert, 331 F.3d 217 (2d Cir. 5/1/2003) (Straub, Chester J.). Court vacates its previous en masse grant of certificates of appealability and states that each should be considered individually, adding that the phrasing of the previously granted COAs unfortunately gave some the erroneous impression that the court believed that district judges were not giving thorough reviews to or conducting independent analyses of habeas petitions. Rudenko v. Costello, 322 F.3d 168 (2d Cir. 2/26/2003) (Kearse, Amalya Lyle). Circuit court may not consider issues outside the certificate of appealability. Because petitioner’s supplemental claim is not included under the certificate of appealability as amended, court lacks jurisdiction to consider the question at this time. Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 11/16/2001) (per curiam). Ninety-day period available for seeking a writ of certiorari from the United States Supreme Court upon exhausting state appellate procedures governing state post-conviction or other collateral review is

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not included in the time tolled under 28 U.S.C. § 2244(d)(2). Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 11/16/2001) (per curiam). Where appropriate, court will construe a motion for a certificate of appealability as a notice of appeal. Marmolejo v. United States, 196 F.3d 377 (2d Cir. 9/10/1999) (per curiam). Although appellant must make a substantial showing of the violation of a constitutional right in order to obtain a certificate of appealability per 28 U.S.C. § 2253(c)(2), once jurisdiction is thereby conferred, circuit court may hear and decide case even if the COA was, in fact, wrongly issued. Soto v. United States, 185 F.3d 48 (2d Cir. 7/21/1999) (Straub, Chester J.). Court rejects argument that a COA should not have issued upon plaintiff’s appeal from order that his habeas petition was time barred, as a COA may only be issued where the applicant has argued the denial of a constitutional right. Thomas v. Greiner, 174 F.3d 260 (2d Cir. 4/19/1999) (per curiam). An appellant need not obtain a certificate of appealability to appeal the denial of his § 2255 motion so long as he filed the motion before April 24, 1996. United States v. Perez, 129 F.3d 255 (2d Cir. 11/7/1997) (McLaughlin, Joseph A.). Court notes that, under Lindh v. Murphy, 521 U.S. 320 (1997), the requirement of obtaining a certificate of appealability under the AEDPA of 1996 is not retroactive. Nelson v. Walker, 121 F.3d 828 (2d Cir. 8/7/1997) (Miner, Roger J.). Conscientious Objectors Court affirms grant of habeas petition brought by physician denied conscientious objector status by the Army Conscientious Objector Review Board. Although the court will generally remand for clarification where the Board has failed to state its reasons for denying such an application, it need not do so where, as here, the record and the ostensible reasons for the ruling are deficient as a matter of law. Watson v. Geren, 587 F.3d 156 (2d Cir. June 25, 2009) (Katzmann). Confrontation Clause/Rights Reversing grant of habeas corpus, court finds that Vermont Supreme Court did not unreasonably apply clearly established Supreme Court law regarding the right to confrontation, when it held that defendant was not denied his right to confrontation in child molestation case when trial court excluded from evidence certain statements of defendant’s wife, including (1) statements of wife made in letters she sent to defendant while he was in pretrial detention for a domestic assault charge, in which she made reference to her “lying,” and (2) statements she had made to a third party whom she had dated while defendant was in detention, suggesting that she did not believe the incident had taken place. Regarding the letters, court finds it is clear beyond a reasonable doubt that Fuller would have been found guilty even if cross-examination on the proffered letter evidence had been allowed. As to the boyfriend’s testimony the court finds that the proffered grounds of relevance were not valid and that an arguably proper ground was not adopted by defense counsel at trial. In any event, the Vermont Supreme Court did not “unreasonably” apply the Confrontation Clause in excluding the statements. Fuller v. Gorczyk, 273 F.3d 212 (2d Cir. 11/27/2001) (Walker, Jr., John M.). Coram Nobis, Writ of Error Court affirms dismissal of writ of error coram nobis, under the All Writs Act, 28 U.S.C. § 1651(a), because petitioner already had been released from confinement and had concluded his period of

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supervised release, and otherwise has failed to allege a continuing legal disability resulting from his conviction. Fleming v. United States, 146 F.3d 88 (2d Cir. 6/1/1998) (per curiam). Writ of coram nobis filed to vacate defendant’s tax fraud conviction was properly denied because defendant failed to demonstrate “sound reasons” for his delay in seeking the writ, which alleged that his plea was involuntary and in violation of Fed.R.Crim.P. 11; and that he had a possible advice-of-counsel defense based on newly discovered exculpatory evidence. “Sound reasons” and not “laches” is the appropriate test for examining delay. Coram nobis is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid. A district court may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a), where “extraordinary circumstances are present.” The proceedings leading to the petitioner’s conviction are presumed to be correct, and the burden rests on the accused to show otherwise. A petitioner seeking such relief must demonstrate that 1) there are “circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting the writ. Foont v. United States, 93 F.3d 76 (2d Cir. 8/22/1996) (Walker, Jr., John M.). Defendant, who tried to attack prior conviction pursuant to writs of error coram nobis or audita querela, failed to sustain claim that defense counsel was ineffective for failing to request a judicial recommendation against deportation, since judge said he would have denied the request if made and JRAD’s were no longer available. Writ of error coram nobis is available to redress an adverse consequence resulting from an illegally imposed criminal conviction or sentence. Audita querela is probably available where there is a legal, as contrasted with equitable, objection to a conviction that has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy. United States v. LaPlante, 57 F.3d 252 (2d Cir. 6/19/1995) (Newman, Jon O.). Custody Requirement Affirming district court’s order dismissing habeas petition attacking criminal conviction, court holds that a petitioner in immigration detention is not “in custody” for the purpose of challenging a state conviction under 28 U.S.C. § 2254. In so holding, court observes that the “collateral consequences” language of Carafas v. Lavallee, 391 U.S. 294 (1968), suggesting that the “in custody” requirement could be satisfied by the existence of collateral consequences of conviction, was disavowed in Maleng v. Cook, 490 U.S. 488 (1989). Ogunwomoju v. United States, 512 F.3d 69 (2d Cir. 2008) (Miner). Defendant who had finished serving his sentence and was no longer on parole, could not obtain habeas corpus relief because he was no longer in custody. Finkelstein v. Spitzer, 455 F.3d 131 (2d Cir. July 11, 2006) (per curiam). Court denies a certificate of appealability to petitioner who seeks to appeal the dismissal of his habeas petition seeking return of his children from foster care where they were placed after their mother’s boyfriend was accused of abusing them, since children in foster care are not in “custody” of the state within the meaning of 28 U.S.C. § 2254. Middleton v. Attorneys General, 396 F.3d 207 (2d Cir. 1/25/2005) (per curiam). “Conditional Parole for Deportation Only” (CPDO) status granted defendant so he could be transferred to INS custody pending deportation does not qualify as a “release” for purposes of the INA until defendant actually has been transferred, and as such, the decision of whether and when to execute defendant’s deportation order was entirely within the Attorney’s General’s discretion. Accordingly, the

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district court lacked subject matter jurisdiction for both his § 1361 mandamus claim and his § 2241 habeas claim. Duamutef v. INS, 386 F.3d 172 (2d Cir. 9/23/2004) (Straub, Chester J.). Dismissal of habeas petition for lack of subject matter jurisdiction is remanded. Requirement that petitioner be “in custody” to bring a habeas petition may be satisfied if petitioner is serving a sentence for a subsequent offense which was enhanced because of the offense under attack. Accordingly, pro se petitioner should be provided an opportunity to amend his petition to challenge explicitly his current sentence’s allegedly illegal enhancement. Williams v. Edwards, 195 F.3d 95 (2d Cir. 10/25/1999) (per curiam). Petition under 28 U.S.C. § 2255 was not timely because petitioner filed his petition on November 29, 1993, three days after his term of supervised release expired, and he therefore was not “in custody.” Fact that attorney tried to file the papers the preceding Friday but was unable to because the court was closed for Thanksgiving does not save the petition, as Fed.R.Civ.P. 6(a) does not extend the jurisdiction of the court. Pierce dissents. Scanio v. United States, 37 F.3d 858 (2d Cir. 10/11/1994) (Altimari, Frank X.). Pursuant to 28 U.S.C. § 2254(a), petition is not moot so long as petitioner is “in custody” under the conviction or sentence under attack at the time the petition is filed, regardless of whether petitioner completes her sentence while the petition is pending. Wheel v. Robinson, 34 F.3d 60 (2d Cir. 8/25/1994) (Mahoney, Daniel J.). Petitioner’s imprisonment as a parole violator by New York State was not “custody” in violation of the Constitution or laws or treaties of the United States, within the meaning of 28 U.S.C. § 2241(c)(3) and 2254(a) (1988), simply because the INS allegedly failed to advise him at his 1988 deportation proceeding that illegal reentry would constitute a violation of his state parole. Additionally, petitioner could not contend that his DWI conviction, an additional basis for his parole revocation, was attributable to the 1988 deportation proceeding. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1/22/1993) (Mahoney, Daniel J.). Deference After initially finding that district court erred in rejecting defendant’s argument that he was wrongly convicted of murder upon a theory of depraved indifference where evidence demonstrated that murder was intentional, court vacates its initial decision and affirms denial of habeas; although evidence of depraved indifference murder rather than intentional murder was weak, it was not non-existent, and intervening decision of Cavazos v. Smith, 132 S. Ct. 2, 5 (2011), strongly reasserted “the necessity of deference to state courts in § 2254(d) habeas cases.” Rivera v. Cuomo, 664 F.3d 20 (2d Cir. December 16, 2011) (per curiam) (on rehearing). Clarifying somewhat conflicting law, court holds that AEDPA deference is owed to state court judgment rejecting federal claim as “either unpreserved for appellate review or without merit.” Thus, under such circumstances, court will not reconsider the constitutional issue de novo, but rather will require that adverse decision be shown to represent an unreasonable application of controlling federal law as held by the Supreme Court. Jimenez v. Walker, 458 F.3d 130 (2d Cir. July 31, 2006) (Walker). Discovery Although a habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course, discovery may be granted upon a showing of “good cause,” per

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Rules Governing § 2254 cases, Rule 6(a), 28 U.S.C. Foll. § 2254. Drake v. Portuondo, 321 F.3d 338 (2d Cir. 1/31/2003) (Jacobs, Dennis G.). Dismissal Court remands habeas petition for clarification of the basis on which claims of prosecutorial misconduct and denial of self-representation were denied, as district court, in dismissing petition, merely adopted ambiguous decision of appellate division and ambiguous and sometimes self-contradictory claims of respondent. Court alludes to the cautionary note sounded by the Supreme Court as to the imprudence of wholesale adoption of a party’s position even in making findings of fact after the court’s decision has been announced. Miranda v. Bennett, 322 F.3d 171 (2d Cir. 2/26/2003) (Kearse, Amalyla Lyle). While dismissals of habeas petitions without an evidentiary hearing are disfavored, here there was no error, as petition, on its face, lacked merit. United States v. Aiello, 900 F.2d 528 (2d Cir. 4/2/1990) (Altimari, Frank X.). Dismissal of habeas without requiring respondent to answer is reversed. Court notes that summary dismissal followed by the grant of a certificate of probable cause is intrinsically contradictory. Dory v. Commissioner of Corrections, 865 F.2d 44 (2d Cir. 1/10/1989) (per curiam). Reversing dismissal on merits of pro se petitioner without ordering a response by the government. Claim by petitioner was not clearly frivolous. On remand, court should first determine if there are unexhausted claims requiring dismissal per Rose v. Lundy, 455 U.S. 509, 522 (1982). Cuadra v. Sullivan, 837 F.2d 56 (2d Cir. 1/12/1988) (Kearse, Amalya Lyle). Prejudicial Delay Affirming conditional grant of habeas where defendant’s counsel failed to file a notice of appeal despite defendant’s request that he do so, court rejects government’s argument that the petition should have been dismissed for prejudicial delay, under (former) Rule 9(a) of the Rules Governing § 2254 Cases in the U.S. District Courts. Defendant was convicted of murder in 1983, tried from 1987 to 1990 to revive his appeal in state court proceedings and then filed a habeas petition in 1997. Adopting the rule of other circuits that have required (1) a particularized showing of prejudice; (2) proof that the prejudice was caused by petitioner’s delayed filing, and (3) evidence that petitioner has not acted with reasonable diligence, court concludes that respondent failed to show prejudice and cannot demonstrate that whatever prejudice it may have suffered was caused by petitioner’s delayed filing. Dumas v. Kelly, 418 F.3d 164 (2d Cir. 8/8/2005) (per curiam). Effective Assistance of Counsel – See also EFFECTIVE ASSISTANCE OF COUNSEL (Main Heading) Applying Massaro v. United States, 538 U.S. 500 (2003), court vacates in part dismissal of habeas, and holds that where a defendant has raised an ineffectiveness claim on direct appeal he may not relitigate that same claim on habeas but may raise new claims of ineffectiveness. Thus the only barrier to raising ineffective assistance claims in a Section 2255 proceeding after raising such claims on direct appeal is the mandate rule, i.e., strategies, actions, or inactions of counsel that gave rise to an ineffective assistance claim adjudicated on the merits on direct appeal may not be the basis for another ineffective assistance claim in a Section 2255 proceeding. Mui v. United States, 614 F.3d 50 (2d Cir. July 30, 2010) (Winter).

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Evidentiary Hearings In habeas corpus cases, the district court is not limited to the state court record and has discretion to conduct an evidentiary hearing. Jones v. Vacco, 126 F.3d 408 (2d Cir. 10/2/1997) (Altimari, Frank X.). Exhaustion of Remedies – See also Procedural Default By affirmatively conceding that petitioner had raised a federal ineffectiveness claim in state court, the state waived any claim that petitioner failed to exhaust his Strickland claim when he based his ineffectiveness claim solely on the New York Court of Appeals’ decision in People v. Baldi, 54 N.Y.2d 137 (1981). Cornell v. Kirkpatrick, 665 F.3d 369 (2d Cir. December 1, 2011) (Straub). Reversing grant of habeas court finds that petitioner failed to exhaust state remedies regarding suggestiveness of second show-up identification at police station as he failed to make this argument in his Appellate Division brief. Richardson v. Superintendent, 621 F.3d 196 (2d Cir. September 20, 2010) (Restani). Court affirms denial of habeas to defendant who alleged that police officer’s communication to him that he had been identified in a lineup was the functional equivalent of interrogation that violated his previous invocation of his right to counsel. Officer had said at the state court Huntley hearing that he did not recall informing defendant of the lineup results but thereafter acknowledged he did so when he was cross-examined at trial. Defendant did not move at trial to reconsider the denial of the Huntley hearing but argued on appeal that in light of the trial revelation that the denial of the Huntley was erroneous. Court holds (1) the state appellate court did not expressly deny defendant’s constitutional claim upon an independent state ground (thus there is no lack of preservation) but that (2) arguably, defendant nonetheless failed to exhaust his present argument because, although he may have presented the claim on direct appeal he had not argued in the trial court that the trial judge should reopen the Huntley hearing after the trial testimony added relevant new facts; and in any event (3) defendant did not present to the Appellate Division his claim that the trial judge erred in not sua sponte reopening the Huntley hearing but rather argued that the Huntley hearing judge – who was not the trial judge – had wrongly denied the motion. Acosta v. Artuz, 575 F.3d 177 (2d Cir. August 4, 2009) (Raggi). District court went too far when, after granting habeas petition based on admitted Brady error, it ordered that state not retry defendant on depraved indifference murder theory, where petitioner did not exhaust the dismissal claim in state court and there was no reason to deprive the state of the opportunity to consider the issue. DiSimone v. Phillips, 518 F.3d 124 (2d Cir. March 4, 2008) (Leval). Question whether a federal constitutional question was sufficiently asserted in state courts to form the basis of a federal habeas petition is ultimately a question of federal law, which the federal courts must resolve for themselves. Here, petitioner’s argument in state court that New York’s depraved indifference murder statute was unconstitutionally vague did not exhaust his insufficiency claim. DiSimone v. Phillips, 461 F.3d 181 (2d Cir. August 22, 2006) (Calabresi). Habeas petitioner exhausted claim that trial court’s refusal to instruct jury on defense of justification denied him due process. He did not explicitly have to tell the state court that he was presenting a federal due process claim because, by raising his state law claim, he necessarily gave the appellate division a fair “opportunity to pass upon and correct alleged violations of [his] federal rights.” Jackson v. Edwards, 404 F.3d 612 (2d Cir. 4/14/2005) (Parker, Jr., Barrington D.). Petitioner was deemed to have exhausted his state claims where he provided copies of his brief to the court of appeals in his leave application without further argument or specificity, but court of appeals

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did not deny the application for failure to particularize the issues upon which the application was based. Galdamez v. Keane, 394 F.3d 68 (2d Cir. 1/4/2005) (Sotomayor, Sonia). Court reverses grant of habeas petition, which raised the issue whether the New York State Court of Appeals’ interpretation of depraved indifference murder and reckless manslaughter has so blurred the distinction between the two crimes that due process is violated. District court wrongly reached the merits because petitioner had not presented the federal constitutional issue to the state court and failed to show cause and prejudice for having not done so. St. Helen v. Senkowski, 374 F.3d 181 (2d Cir. 7/6/2004) (per curiam). Court observes, at n.1 that exhaustion of administrative remedies might not be necessary if obviously futile. United States v. Arthur, 376 F.3d 93 (2d Cir. 5/11/2004) (Pooler, Rosemary S.). Citing law of the case, court declines to revisit its previous ruling that defendant failed to exhaust his state remedies where his application for leave to appeal to the New York State Court of Appeals merely attached the appellate brief without identifying the issues as to which leave was sought. DiGuglielmo v. Smith, 366 F.3d 130 (2d Cir. 4/28/2004) (per curiam). Petitioner sufficiently exhausted Batson claim in state court by relying on Batson and making essentially the same argument he now made in federal court, even though in state court he relied on the Due Process Clause of the Fourteenth Amendment, whereas in federal court he relied on the Equal Protection Clause. McKinney v. Artuz, 326 F.3d 87 (2d Cir. 4/9/2003) (Sack, Robert D.). Reversing grant of habeas corpus, court holds that defendant’s sufficiency argument in second degree murder case did not exhaust – and procedurally defaulted – issue whether, under New York law, there is no meaningful distinction between depraved indifference murder and reckless manslaughter, in violation of equal protection and substantive due process. Jones v. Keane, 329 F.3d 290 (2d Cir. 5/13/2003) (Parker, Jr., Barrington D.). Applying Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc), court vacates finding below that petitioner failed to exhaust federal ineffective assistance of counsel claim before the New York State Court of Appeals, but agrees he failed to exhaust confrontation claim. Court discusses when references to appellate division briefs, made in leave letter to court of appeals, suffice to exhaust issues for purposes of federal habeas review. Van Graafeiland concurs. Ramirez v. Attorney General of New York, 280 F.3d 87 (2d Cir. 9/7/2001) (Winter, Jr., Ralph K.). Reversing dismissal of petition as untimely, court holds (1) that a district judge confronting a mixed petition has discretion either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition; (2) that, in this case, a stay should have been entered in response to petitioner’s request to have his mixed petition withdrawn in order to avoid untimeliness; and (3) that the stay should have been conditioned on petitioner’s prompt return to federal court after completion of exhaustion. Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 6/14/2001) (Newman, Jon O.). Court finds that the exhaustion requirement applies as well to exhaustion of administrative remedies in a petition brought under 28 U.S.C. § 2241. Here, court denies petitioner’s motion to appoint counsel on appeal, under 28 U.S.C. § 1915(e)(1), finding that petitioner was unlikely to show cause and prejudice for his failure to exhaust administrative remedies to the alleged wrongful forfeiture of good time credits. Carmona v. United States Bureau of Prisons, 243 F.3d 629 (2d Cir. 3/20/2001) (Cardamone, Richard J.).

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Where petitioner raised issue regarding the state court’s breach of plea agreement only on motion to reargue denial of leave application and was told his motion was untimely, he had exhausted his state remedies, even though those remedies had been procedurally defaulted. Here, however, default is excused to avoid a fundamental miscarriage of justice, as he was actually innocent of violating the “no misconduct” provision of his plea agreement but nonetheless received a maximum sentence of 8 1/3 to life for being re-arrested before sentencing. Even if petitioner could pursue another 440.20 motion in state court, it will not be required, as petitioner is entitled to relief whether granted by state court or federal court. Additionally, petitioner’s failure to object to magistrate’s procedural default finding will not preclude relief, as objection requirement is non-jurisdictional and will be excused where defaulted argument has substantial merit; i.e., where magistrate judge committed plain error in ruling against the defaulting party. Although there generally is a choice of remedy, here, the only reasonable disposition, as petitioner has already served 8 years of sentence, is to order his release. Spence v. Superintendent, Great Meadow Cor. Fac., 219 F.3d 162 (2d Cir. 7/18/2000) (Cardamone, Richard J.). District court erred when it determined that defendant failed to exhaust his Confrontation Clause claim, i.e., that the cross-examination of a key prosecution witness was unreasonably restricted. Defendant’s application for leave to appeal to the Court of Appeals explicitly incorporated “all issues outlined in defendant-appellant’s brief and pro se supplemental brief,” and this language sufficiently incorporated the confrontation claim, even though this claim was not explicitly addressed in defendant’s subsequent letter submission in support of the Leave application. Court would not infer that the New York Court of Appeals would construe counsel’s second letter as eliminating issues as to which review had been expressly requested. Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2/28/2000) (Kearse, Amalya Lyle). Disagreeing with district court, court holds that petitioner, in fact, exhausted issue of whether the evidence established that he was guilty of depraved murder, even though petitioner’s state appellate brief focused more on whether there was proof of defendant’s identity as the shooter. Fama v. Commissioner of Correctional Services, 235 F.3d 804 (2d Cir. 12/21/2000) (Calabresi, Guido). Prosecutor’s cryptic comments during argument in district court were not an “express” waiver of the exhaustion requirement. Lurie v. Wittner, 228 F.3d 113 (2d Cir. 9/26/2000) (Jacobs, Dennis G.). Court affirms dismissal of habeas corpus petition, because podiatrist’s claim -- that Medicaid billing code pursuant to which she submitted claims failed to give her fair notice that it did not cover the claimed goods and services, as required by due process -- was not fairly presented to the New York State courts, as required by the exhaustion requirement. Although petitioner referred to “fair notice” in her state claim, the state and federal claims are otherwise distinct and cannot be said to be the “substantial equivalent.” Petition has shown neither “cause and prejudice” nor that there occurred a constitutional violation against a person who is actually innocent. Strogov v. Attorney General of the State of NY, 191 F.3d 188 (2d Cir. 9/9/1999) (Cardamone, Richard J.). Reversing dismissal of § 1983 action, court holds that the requirement that prisoners exhaust administrative remedies under the Prison Litigation Reform Act, does not apply to cases filed before the Act’s effective date. Salahuddin v. Mead, 174 F.3d 271 (2d Cir. 4/22/1999) (Sotomayor, Sonia). Reversing dismissal of habeas petition, court holds that exhaustion requirement of 42 U.S.C. § 1997e(a), applicable to petitions filed by “confined” prisoners, did not apply to prisoner who had been released from custody by the time his complaint was filed. Greig v. Goord, 169 F.3d 165 (2d Cir. 3/2/1999) (per curiam).

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Petitioner adequately raised in state court, and therefore exhausted, issue whether he was deprived of his constitutional rights when the trial judge forbade him from speaking with his attorney during an overnight break in his cross-examination. Jones v. Vacco, 126 F.3d 408 (2d Cir. 10/2/1997) (Altimari, Frank X.). Reversing district court’s judgment dismissing petition for failure to exhaust, court finds that petitioner’s pro se pleadings sufficiently presented his present claim of ineffective assistance of counsel based on counsel’s failure to use certain tests that showed an antigen in the semen found on male victim’s underpants could not have come from petitioner. Dorsey v. Kelly, 112 F.3d 50 (2d Cir. 4/9/1997) (Calabresi, Guido). Where petitioner invoked the Sixth Amendment right to a public trial in the state court and in fact cited Waller v. Georgia, 467 U.S. 39 (1989), the public trial issue was properly exhausted, even if petitioner did not previously allude to all the Waller factors. Petitioner need not have raised the exact constitutional arguments in state court before challenging the constitutionality of the exact same acts under the same constitutional provision in federal court on habeas review. Ayala v. Speckard, 89 F.3d 91 (2d Cir. 12/11/1996) (Altimari, Frank X.). Defendant failed to establish cause and prejudice for failing to raise on direct appeal claims regarding a breach of the plea agreement. United States v. Rodgers, 101 F.3d 247 (2d Cir. 11/27/1996) (Walker, Jr., John M.). Petitioner failed to raise constitutional double jeopardy claim. His reference to double jeopardy in his “reply” letter in support of his letter application to the court of appeals seeking collateral review of his sentence was not sufficient, as he was required to raise the issue in his initial letter, and his reply was unsolicited. He also failed to raise in federal constitutional terms, issue regarding his absence from the resentencing proceeding. It was not sufficient to cite a state case which, in turn, cited a federal case referring to a defendant’s constitutional right to be present at sentencing. Levine v. Commissioner of Correctional Services, 44 F.3d 121 (2d Cir. 1/3/1995) (McLaughlin, Joseph A.). Reversing grant of habeas corpus to state contemnor, court finds that petitioner failed to exhaust his state remedies when he voluntarily dismissed state appeal. Commenting on petitioner’s state writ of prohibition, court notes that the submission of claims to the state court on discretionary review does not automatically constitute the fair presentation of the claims. Only where the state court exercises its discretion and rules on the merits will the exhaustion requirement be satisfied in this context. Petitioner did not satisfy the exception to the exhaustion requirement, where there is “no opportunity” to redress in state court the claim or where the state corrective process is so clearly deficient as to render futile any effort to obtain relief. Ellman v. Davis, 42 F.3d 144 (2d Cir. 12/15/1994) (Miner, Roger J.). Court agrees with petitioner that he did not exhaust his state remedies for his claim of ineffective assistance of trial counsel, because he had not previously argued, as a ground for his claim, fact that counsel was using drugs, nor had he pursued his ineffectiveness claim by way of a motion under C.P.L. § 440. Court accepts petitioner’s argument, as against respondent’s contrary claim, notwithstanding that both parties had taken opposite positions in the district court, and district court had held the claim was exhausted because, although petitioner failed to raise the issue before the New York Court of Appeals, relief there was now procedurally barred, and he therefore had met the statutory exhaustion requirement for habeas corpus. Caballero v. Keane, 42 F.3d 738 (2d Cir. 12/12/1994) (Van Graafeiland, Ellsworth A.). Remanding case of parolee who claimed that he was denied a prompt parole revocation hearing, court observes that, to the extent the petitioner is relying on a recent change in Ohio law, he might be

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required to first exhaust his remedies anew in state court, per 28 U.S.C. § 2254(b). Graham v. Tilghman, 35 F.3d 74 (2d Cir. 9/9/1994) (Winter, Jr., Ralph K.). Defendant exhausted her state remedies by citing her constitutional right to present a defense and by citing the leading case in the area. Williams v. Lord, 996 F.2d 1481 (2d Cir. 7/1/1993) (Lumbard, Edward J.). Petitioner exhausted question whether he was constitutionally entitled to a missing witness instruction when he asserted a due process violation in his pro se supplemental brief. Although further specification of such a broad claim is better practice, the general reference to due process was adequate. Reid v. Senkowski, 961 F.2d 374 (2d Cir. 4/9/1992) (per curiam). Petitioner exhausted federal claim involving impropriety of summation, but only marginally so, where he mentioned the Fourteenth Amendment in his point heading, but failed to discuss the federal claim in the body of his brief. Gonzalez v. Sullivan, 934 F.2d 419 (2d Cir. 5/28/1991) (Cardamone, Richard J.). Petitioner must present claim to highest court of state to satisfy exhaustion requirement. Defendant failed to present sentencing and prosecutorial misconduct claims when he argued different claims in his leave application to the court of appeals and merely attached lower court briefs, which contained these claims. Court will in fact consider claims exhausted, since they are now procedurally barred, but absent a showing of cause and prejudice, they will not be entertained. Grey v. Hoke, 933 F.2d 117 (2d Cir. 5/9/1991) (Walker, Jr., John M.). Defendant only exhausted two of the seven grounds for claim of ineffectiveness. Since claim can turn on the cumulative effect of all of counsel’s actions, all should be reviewed together. Petition therefore dismissed. Rodriguez v. Hoke, 928 F.2d 534 (2d Cir. 3/15/1991) (Pratt, George C.). Defendant exhausted double jeopardy claim under last two criteria of Daye v. Attorney General of New York, 696 F.2d 186 (2d Cir. 1982) (en banc), i.e., defendant asserted the claim in terms so particular as to call to mind the claim, and he alleged a pattern of facts that is well within the mainstream of constitutional litigation. Stewart v. Scully, 925 F.2d 58 (2d Cir. 2/1/1991) (Mahoney, Daniel J.). Defendant exhausted various claims. Blissett v. LeFevre, 924 F.2d 434 (2d Cir. 1/22/1991) (Walker, Jr., John M.). Petitioner failed to exhaust state remedies when he failed to appeal claim to state appellate court. Pesina v. Johnson, 913 F.2d 53 (2d Cir. 9/14/1990) (per curiam). Petitioner who has endured lengthy state appellate delay need not exhaust further state remedies. Elcock v. Henderson, 902 F.2d 219 (2d Cir. 5/3/1990) (per curiam). By presenting argument to the appellate division, petitioner exhausted the claim that the trial court should have instructed the jury on justification, even if the argument had not been made to the trial court. Additionally, law was sufficiently clear at time of trial that petitioner should not be required to return to state court to argue the application of new case law. Blazic v. Henderson, 900 F.2d 534 (2d Cir. 4/2/1990) (Pierce, Lawrence W.). Petitioner exhausted claim of appellate ineffectiveness by reference to “Strickland v. Washington [sic]” in supplemental brief. Abdurrahman v. Henderson, 897 F.2d 71 (2d Cir. 2/23/1990) (Miner, Roger J.).

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Defendant need not exhaust state collateral remedies to satisfy exhaustion requirement. Leecan v. Lopes, 893 F.2d 1434 (2d Cir. 1/11/1990) (Mahoney, Daniel J.). Because appellant initiated a state court appeal after petitioning the federal courts for habeas corpus relief, court holds that appellant has failed to exhaust his state remedies and dismisses the petition without prejudice. McGann v. State, 870 F.2d 908 (2d Cir. 3/23/1989) (Feinberg, Wilfred). Court deems exhaustion of confrontation issue a “close” one, but nonetheless dismisses petition, since appellate division brief only made a “terse and uninformative presentation.” Morgan v. Jackson, 869 F.2d 682 (2d Cir. 3/8/1989) (Kearse, Amalya Lyle). In the unusual and ambiguous situation before the court, where a finding of exhaustion on ineffectiveness claim would require dismissal of the writ -- raising a speedy trial claim -- and where it is highly doubtful that the ineffectiveness claim was presented to the state court, court finds it preferable to return the case to state court to allow exhaustion. Parron v. Quick, 869 F.2d 87 (2d Cir. 2/21/1989) (Feinberg, Wilfred). Article 78 petition was probably insufficient to exhaust Batson issue for federal habeas corpus review, since state court was not acting clearly outside its jurisdiction in holding Batson applicable to defense attorneys. See Batson v. Kentucky, 476 U.S. 79 (1986). Davis v. Lansing, 851 F.2d 72 (2d Cir. 6/30/1988) (Meskill, Thomas J.). Failure to exhaust is not an absolute bar to considering petition on the merits. It is a doctrine of comity. Davis v. Lansing, 851 F.2d 72 (2d Cir. 6/30/1988) (Meskill, Thomas J.). Defendant did not exhaust issue of whether district attorney’s wrongful failure to let defendant testify in grand jury denied him due process and equal protection. In any event, any constitutional infirmity was harmless. Saldana v. New York, 850 F.2d 117 (2d Cir. 6/27/1988) (Lumbard, Edward J.). Defendant exhausted claim regarding disbarment of his lawyer on last day of Huntley hearing even though claim was not couched in same terms. See Day v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc). Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir. 6/3/1988) (Winter, Jr., Ralph K.). Defendant validly gave up exhausted issues, so court could reach unexhausted claim. Court distinguishes, in note 1, Grady v. Lefevre, 846 F.2d 862 (2d Cir. May 17, 1988). Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir. 6/3/1988) (Winter, Jr., Ralph K.). Issue of youths being sworn improperly was cast on state appeal only in terms of state law and therefore was not exhausted. Court rejects defendant’s attempt to dismiss unexhausted claim per Rock v. Coombe, 694 F.2d 908, 914 (2d Cir. 1982). Grady v. Lefevre, 846 F.2d 862 (2d Cir. 5/13/1988) (Timbers, Williams H.). Defendant’s state court argument that verdict was against weight of evidence was sufficient to exhaust sufficiency issue for federal habeas. Liberta v. Kelly, 839 F.2d 77 (2d Cir. 2/9/1988) (Winter, Jr., Ralph K.). Factual Disputes/Findings Court vacates district court’s judgment granting habeas corpus petition based on ineffective assistance of counsel, where district court had rejected magistrate’s credibility findings without

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conducting a new hearing to assess the witness’s credibility. Circuit court directs the district court either to enter judgment in accordance with the magistrate judge’s findings, or to conduct a new hearing as a basis for whatever findings the court may then make. Carrion v. Smith, 549 F.3d 583 (2d Cir. December 8, 2008) (Katzmann). Court remands habeas for further fact finding by district court regarding whether petitioner’s attorney in fact failed to consult with petitioner regarding whether an appeal should be filed after he pleaded guilty in 1999 and received a mandatory minimum ten year sentence, but asserted that he would have filed an appeal arguing that he never admitted to possessing any particular quantity of drugs and that the trial court improperly made a determination regarding quantity by a preponderance of the evidence. Galviz Zapata v. United States, 431 F.3d 395 (2d Cir. 12/6/2005) (Wesley, Richard C.). Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude that decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. See Miller-el v. Cockrell, 537 U.S. 322 (2003). Parsad v. Greiner, 337 F.3d 175 (2d Cir. 7/21/2003) (Pooler, Rosemary S.). Court notes, at n.4, that, under the amendments to 28 U.S.C. § 2254(e)(1), factual findings of state courts carry a presumption of correctness which may be rebutted by clear and convincing evidence. Nelson v. Walker, 121 F.3d 828 (2d Cir. 8/7/1997) (Miner, Roger J.). District court erred in failing to defer to state appellate court findings of fact, which rejected petitioner’s claim that his guilty plea was involuntary because a “secret deal” -- as supposedly reflected, in part, in a letter to petitioner from defense counsel -- had promised him concurrent sentences and required him to lie when asked if there were any other understandings besides those put on the record, whereas he received consecutive sentences of greater length. While 28 U.S.C. § 2254(d) does not require deference to state court findings of mixed issues of fact and law such as whether a plea agreement was entered into voluntarily, or whether there has been ineffective assistance of counsel, the presumption does apply to matters of historical fact and to factual inferences to be drawn from the historical fact. It therefore also covers a state appellate court’s elucidation of the findings of a state trial court, and likewise covers a state court finding as to the parties’ understanding of a plea agreement. Here, appellate court’s express finding that hearing judge made an implied finding regarding the effect of disputed letter, was fairly compelled by the evidence and should have been deferred to by federal district court. No remand to district court is required since no convincing evidence is available to suggest that state court’s conclusions were erroneous. Ventura v. Meachum, 957 F.2d 1048 (2d Cir. 2/26/1992) (Walker, Jr., John M.). See footnote 3 re: court’s conclusion that it must defer to state court only on questions of “historical” fact and the inferences to be drawn therefrom. Questions of law and mixed questions of law and fact are subject to plenary review. Oppel v. Meachum, 851 F.2d 34 (2d Cir. 6/22/1988) (per curiam). Factual findings are presumed correct per 28 U.S.C. § 2254(d), i.e., historical facts, recitals of external events and the credibility of witnesses narrating them, see Cuyler v. Sullivan, 446 U.S. 335, 34142 (1980). Whether defendant waived Fifth Amendment privilege is a question of law, and court makes independent determination of whether confession was voluntary. Green v. Scully, 850 F.2d 894 (2d Cir. 6/20/1988) (Cardamone, Richard J.). In reversing grant of habeas, circuit court finds that certain facts found by the district court were clearly erroneous and therefore rejects them. Whaley v. Rodriguez, 840 F.2d 1046 (2d Cir. 2/10/1988) (Van Graafeiland, Ellsworth A.).

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Presumption of Correctness Court finds, along the way to reversing denial of habeas on double jeopardy grounds, that state court’s findings regarding when it issued its decision reinstating a dismissed count of indictment was rebutted by clear and convincing evidence and therefore would not be accepted under 28 U.S.C. § 2254(e)(1). Morris v. Reynolds, 264 F.3d 38 (2d Cir. 8/31/2001) (Parker, Fred I.). In case involving alleged Brady violations in which the trial court found such violations, but the appellate division reversed and did not identify which materials were not withheld and which were not Brady material, court concludes that full AEDPA deference is due only to factual findings, and mixed findings of fact and conclusions of law that court can fairly infer from the state court opinion. Boyette v. Lefevre, 246 F.3d 76 (2d Cir. 4/3/2001) (Pooler, Rosemary S.). Guilty Pleas Court reverses grant of habeas, finding – contrary to district court – that defense counsel was not ineffective in failing to tell defendant that he had an option of pleading guilty to a lesser sentence without cooperation where state court’s finding that an offer – 17 years to life for a plea to the top count – in fact had been made to him by the DA in open court was not clearly erroneous. Cardoza v. Rock, 731 F.3d 169 (2d Cir. September 24, 2013) (Sack). Grounds for Granting Relief Generally Affirming denial of habeas petition filed by state court defendant who alleged that his convictions of common law DWI and assault were tainted by error that state court found harmless as to those counts, i.e., the admission of a blood sample seized pursuant to a warrant that violated state law regarding the use of undisclosed hearsay not shown to be reliable, court holds that “the harmlessness of an error of state law in a state prosecution is itself a matter of state law not subject to federal habeas review.” Freeman v. Kadien, 684 F.3d 30 (2d Cir. July 3, 2012) (Raggi). Claim that evidence at defendant’s state court trial was at variance with bill of particulars did not present an issue of federal law cognizable on habeas. Similarly, defendant had no federal constitutional right to a justification instruction that included any particular provisions, as justification is a state-law defense. DiGuglielmo v. Smith, 366 F.3d 130 (2d Cir. 4/28/2004) (per curiam). Denial of habeas corpus affirmed because a violation of the Interstate Compact on Detainers is not a ground for relief under 28 U.S.C. § 2254. Reilly v. Warden, 947 F.2d 43 (2d Cir. 10/23/1991) (per curiam). Even if court erred not reopening testimony to answer jury’s questions regarding whether witness had testified under immunity (and in fact it had not erred), such error was not of constitutional dimension warranting issuance of writ. Blissett v. LeFevre, 924 F.2d 434 (2d Cir. 1/22/1991) (Walker, Jr., John M.). Defendant may be entitled to relief for due process violation resulting from delay in state appellate proceedings, even if his conviction is ultimately affirmed. Elcock v. Henderson, 902 F.2d 219 (2d Cir. 5/3/1990) (per curiam). Alibi Defense/Witness/Testimony

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Affirming grant of writ, court agrees that it was constitutional error to exclude defendant’s proposed alibi testimony, proffered late under state law, where any prejudice to the people could have been minimized with relative ease, absent a finding that counsel’s non-compliance with CPL § 250.20 was willful. Error was not harmless. Jacobs dissents. Noble v. Kelly, 246 F.3d 93 (2d Cir. 4/5/2001) (per curiam). Court affirms denial of habeas where defendant argued he was denied due process in his state trial when state belatedly announced its intention to call a witness to rebut his alibi defense. Per Williams v. Taylor, 529 U.S. 362 (2000), defendant failed to show that the right he asserted was “clearly established… as determined by the Supreme Court of the United States.” The Supreme Court has not held that a state court violates due process by allowing alibi rebuttal testimony where the prosecution arguably should have known through investigation before the alibi witness testified that its rebuttal witness could refute the alibi testimony, and yet did not provide reciprocal alibi discovery. Cf. Wardius v. Oregon, 412 U.S. 470 (1973) (due process prohibits the enforcement of alibi notice rules unless criminal defendants are given the opportunity for reciprocal discovery). Vasquez v. Strack, 228 F.3d 143 (2d Cir. 9/14/2000) (Parker, Fred I.). Appellate Delay Court affirms denial of habeas petition to state prisoner who experienced a 13-year appellate delay. Defendant failed to show actual prejudice resulting from delay. Case is remanded to permit petitioner to pursue other remedies. Muwwakkil v. Hoke, 968 F.2d 284 (2d Cir. 7/7/1992) (Lumbard, Edward J.). Court did not err in finding that defendant was prejudiced by appellate delay, by virtue of his unnecessary anxiety and concern, even absent actual prejudice to appeal; but absent such actual prejudice, court should not grant unconditional release. Additionally, court erred in finding that defendant’s appellate attorney labored with a conflict merely because he had delayed filing appeal and therefore could possibly face grievance proceedings. Rather, defendant would be entitled to a new appeal only if appellate counsel rendered ineffective assistance of counsel under Strickland standard, or if attorney’s representation was of poor quality and that such poor quality was caused by attorney’s fear of potential disciplinary or other proceedings against him as a result of the delay. Elcock v. Henderson, 947 F.2d 1004 (2d Cir. 10/17/1991) (Kearse, Amalya Lyle). Appellate delay, absent prejudice, is not ground for granting writ, and petitioner will not be heard to complain if he does not act quickly to require that his appeal be heard. While the factors discussed in Barker v. Wingo, 407 U.S. 514, 530-33 (1972), are relevant to determining whether there has been a due process violation, prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), must be considered to determine whether habeas corpus relief is justified. Mathis v. Hood, 937 F.2d 790 (2d Cir. 6/28/1991) (Pratt, George C.). Claim of ten-year appellate delay is cognizable in habeas corpus, even if appeal is decided during pendency of petition, but district court erred in granting writ and releasing petitioner, in absence of showing of actual prejudice. Petitioner’s due process rights were violated, and courts in this circumstance may grant conditional writ or other relief, e.g., bail pending appeal or sentence reduction by a factor proportioned to the delay suffered by the defendant (see n.2) or relief under 42 U.S.C. § 1983, but not unconditional release. Cody v. Henderson, 936 F.2d 715 (2d Cir. 6/26/1991) (Feinberg, Wilfred). Court orders that writ issue if petitioner’s state appeal -- not heard for 8 years -- is not heard within 60 days. Brooks v. Jones, 875 F.2d 30 (2d Cir. 5/12/1989) (Lumbard, Edward J.).

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Court reverses dismissal of habeas by prisoner whose appeal had not been decided for five years, even though appellate division eventually decided the appeal and affirmed the conviction. Case is not moot because plaintiff is still seeking relief. Mathis v. Hood, 851 F.2d 612 (2d Cir. 7/14/1988) (Lumbard, Edward J.). Appellate Rights Failure to Inform Denial of habeas remanded for determination whether defendant was prejudiced by sentencing court’s failure to inform defendant of his right to appeal. Defendant need not prove, however, that he had viable appellate issue, and government, to avoid relief, bears burden of proving by clear and convincing evidence, that defendant in fact was aware of his right to appeal and therefore suffered no prejudice. Soto v. United States, 185 F.3d 48 (2d Cir. 7/21/1999) (Straub, Chester J.). Conditions of Confinement Petitions alleging improper conditions of confinement are properly brought under 28 U.S.C. § 2241. Thompson v. Choinski, 525 F.3d 205 (2d Cir. May 8, 2008) (Leval). Defense - Right to present Although court agrees that state court probably should have admitted evidence that victim of fatal shooting was carrying distributable quantity of heroin when he was shot – in order to support defense that victim’s companion falsely implicated defendant to hide his own liability stemming from a drug sale in which the companion and the victim were involved – such evidence would not have so plainly created a reasonable doubt that a conclusion to the contrary would have been objectively unreasonable. Jimenez v. Walker, 458 F.3d 130 (2d Cir. July 31, 2006) (Walker). State defendant, convicted of robbery, is granted a new trial because trial court wrongly excluded testimony of two defense witnesses, who would not only have challenged the sole prosecuting witness’ version of the facts, but would have tended to establish bias and supported the defense. Justice v. Hoke, 90 F.3d 43 (2d Cir. 7/19/1997) (Lasker, Morris E.). Double Jeopardy Connecticut Supreme Court’s conclusion, that the trial court’s incorrect finding that the statute of limitations had been exceeded by one day was not a determination that went to defendant’s culpability and therefore did not implicate the double jeopardy clause, was clearly within the bounds of the permissible under Scott and under Burks, and retrial of defendant therefore did not violate the double jeopardy clause. Sack concurs. Kruelski v. State of Conn., 316 F.3d 103 (2d Cir. 1/3/2003, amended February 11, 2003) (Calabresi, Guido). Writ granted because there was no manifest necessity for mistrial. Although court officer’s interference with deliberations required mistrial under Vermont law, prosecution was not thereby prejudiced, and jury, upon being permitted to return verdict “to complete the record,” found the defendant not guilty. Corey v. District Court of Vermont, 917 F.2d 88 (2d Cir. 10/22/1990) (Meskill, Thomas J.). Fair Notice

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Fair notice is a rule of constitutional law and is an underlying reason for the rule of lenity. Petitioner therefore made a constitutional argument under the AEDPA when he claimed that the trial court permitted a witness to testify that defendant violated a certain regulation in order to support the prosecutor’s claim that he willfully defrauded co-op purchasers, in violation of a separate law, as charged in the indictment. However, the challenged ruling was not “contrary” to established federal law, nor was it an “unreasonable application” of it, and district court therefore erred in granting habeas relief. The ruling was not “contrary” to established federal law per 28 U.S.C. § 2254(d)(1), because the rule of lenity had not been applied previously to evidence that did not concern the statute under which defendant actually was charged. It was not an “unreasonable application of” precedent because the state court’s application of the fair-notice precedents was not “objectively unreasonable.” There is no reason to think that the jury believed that defendant’s purported (but uncharged) violation of the technical statutory requirement about which the witness testified was itself sufficient to demonstrate knowing, intentional fraud as charged in the indictment. Thus the evidentiary ruling permitting the testimony may have been sound or not, but the refusal by the New York courts to apply the rule of lenity to a statute that was neither charged nor mentioned at trial is not an “unreasonable application” of Supreme Court precedent. So finding, court declines to decide whether unreasonable refusals to extend Supreme Court precedents are sufficient to satisfy AEDPA’s requirement of an “unreasonable application of” Supreme Court case law. Court similarly finds that the trial court’s judgment, to preclude “advice of counsel” testimony absent the defendant himself testifying to lay the groundwork, may or may not have been correct as a matter of state law, but was not “contrary to” Supreme Court precedent or an “unreasonable application” thereof. Lurie v. Wittner, 228 F.3d 113 (2d Cir. 9/26/2000) (Jacobs, Dennis G.). Fourth Amendment Claims Fact that appellate court did not issue opinion explaining why it affirmed denial of standing to assert Fourth Amendment claim, notwithstanding Supreme Court’s intervening decision in Minnesota v. Olson, 495 U.S. 91 (1990), did not amount to the sort of unconscionable breakdown in the state adjudicatory system which would justify federal habeas review, notwithstanding normal prohibition under Stone v. Powell. Critical fact is that state provided the opportunity fully to litigate the claim, even if it came to the wrong decision. Federal courts will not tell state courts when they need to write a formal decision. Capellan v. Riley, 975 F.2d 67 (2d Cir. 9/16/1992) (Pierce, Lawrence W.). Fourth Amendment claim may not be raised on habeas corpus, per Stone v. Powell, 428 U.S. 465 (1976), absent a showing that the defendant was denied a full and fair opportunity to litigate his claim. Grey v. Hoke, 933 F.2d 117 (2d Cir. 5/9/1991) (Walker, Jr., John M.). Defendant was granted full and fair opportunity to litigate his Fourth Amendment claim in state court and therefore may not raise claim on federal habeas corpus review. Cappiello v. Hoke, 852 F.2d 59 (2d Cir. 7/20/1988) (per curiam). Ineffective Assistance of Counsel Reversing grant of habeas to state prisoner on grounds of ineffective assistance of counsel, court finds that the state court’s ruling was not contrary to, nor did it involve an unreasonable application of federal law -- as would be required to reject state law finding -- because, in fact, both of the allegedly bad decisions made by trial counsel -- including his failure to call additional witnesses to impeach prosecution witnesses and his failure to introduce a certain phone conversation -- were objectively reasonable. Sacco v. Cooksey, 214 F.3d 270 (2d Cir. 6/6/2000) (per curiam). Dismissal of habeas petition, based on trial counsel’s admission that he suffered severe personal and professional stresses during defendant’s trial, is remanded. New claim was not based on the trial

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record and was not the same as the ineffectiveness claim raised on direct appeal, which concerned the trial court’s denial of an adjournment. Abbamonte v. United States, 160 F.3d 922 (2d Cir. 11/23/1998) (Van Graafeiland, Ellsworth A.). Jury Instructions Affirming grant of habeas, court agrees that petitioner was entitled under state law to justification instruction in case where petitioner claimed victim was about to rob him in apartment. Failure to give the instruction was “catastrophic” to petitioner’s defense to murder and required habeas relief because it “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). Additionally, although petitioner was not entitled to the defense with respect to charge of possessing a firearm with the intent to commit a felony, the failure to give the instruction on the murder charge also prejudiced defendant with respect to the firearms charge. Jackson v. Edwards, 404 F.3d 612 (2d Cir. 4/14/2005) (Parker, Jr., Barrington, D.). Burden of demonstrating reversible error on habeas for erroneous jury instruction is greater than demonstrating plain error on direct appeal and requires finding that instruction by itself so infected the entire trial that the resulting conviction violates due process. Leecan v. Lopes, 893 F.2d 1434 (2d Cir. 1/11/1990) (Mahoney, Daniel J.). Trial court’s omission of justification charge did not merit habeas relief, since the omission of the instruction did not alter verdict and therefore did not violate petitioner’s due process rights. Blazic v. Henderson, 900 F.2d 534 (2d Cir. 4/2/1990) (Pierce, Lawrence W.). Lesser Included Offenses Neither the Supreme Court nor the Second Circuit has determined whether the failure to instruct the jury on a lesser included offense in noncapital cases is a constitutional issue that may be considered on habeas corpus. Here, case did not warrant a lesser of criminally negligent homicide as there was no reasonable view of the evidence which would support the lesser but not the greater of manslaughter. Knapp v. Leonardo, 46 F.3d 170 (2d Cir. 1/24/1995) (Mahoney, Daniel J.). Mental Capacity Court rejects claim that trial court trial, under Drope v. Missouri, 420 U.S. N.Y.C.P.L. § 730.30 subd. 1, where, even point to nothing in the record to indicate condition so as to require a competency 7/17/1991) (per curiam).

should have examined him for mental competency to stand 162 (1975), Pate v. Robinson, 383 U.S. 375 (1966), and though he was an escapee from a mental hospital, he could that the trial court should have been alerted to his mental examination. Rollins v. Leonardo, 938 F.2d 380 (2d Cir.

In case where defendant alleged he was incompetent to stand trial in state court, court finds that state court was not required, in order to satisfy due process, to make detailed findings after the second of two competency hearings whereat petitioner was found competent to stand trial. Nor was the failure to hold another hearing during the trial constitutional error. Senna v. Patrissi, 5 F.3d 18 (2d Cir. 9/16/1993) (per curiam). Perjured Testimony Court reverses denial of habeas petition and grants petition where prosecutor knowingly elicited and exploited witness’s false testimony that he had not made a deal with the prosecutor in the witness’s

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own prosecution when, in fact, he received probation in exchange for his testimony against defendant. Although this prosecutor was not the one who prosecuted the witness, the prosecutor’s office is an entity, and as such, it is the spokesman for the government. Before a prosecutor puts to the jury evidence that a witness has made no deal with the government, he or she has a fundamental obligation to determine whether that is so. Prejudice was apparent because this was the key witness, and his credibility was highly relevant to the jury’s determination of the case. Court also addresses, at n.5, other lies told by the witness and notes, at n.6, that the very fact that witness lied would likely have impacted the jury, aside from the significance of the fact that the witness had cut a deal with the prosecutor. Wei Su v. Filion, 335 F.3d 119 (2d Cir. 7/11/2003) (Calabresi, Guido). Court reverses denial of habeas and grants petition where key witness against defendant recanted, as he had with respect to two other crimes about which he had testified. Hearing testimony demonstrated that the witness was an inveterate liar, and whether or not his recantation was true, it was apparent that his trial testimony was a lie. District court erred in focusing solely on the credibility of the witness’s recantation, rather than on the question of whether the witness’s trial testimony was perjured. Court also addresses question of whether a showing of perjury can justify habeas relief absent knowledge of the perjury by the state prosecutor. Court says that when false testimony is provided by a government witness without the prosecution’s knowledge, due process is violated only if the testimony was material and the court is left with the firm belief that but for the perjured testimony, the defendant would most likely not have been convicted. Ortega v. Duncan, 333 F.3d 102 (2d Cir. 6/17/2003) (Oakes, James L.). Affirming grant of habeas as to one count of state indictment, but reversing as to another, where perjured testimony, now recanted, undermined the reliability of the verdict as to one count. Sanders v. Sullivan, 900 F.2d 601 (2d Cir. 4/16/1990) (Lumbard, Edward J.). Reduction of Sentence District court erred when it granted Westies defendant’s motion for a second sentence reduction, under 28 U.S.C. § 2255, to keep intended disparity between codefendants and to recognize defendant’s good behavior in prison. The motion was not based on any legal or jurisdictional infirmity, and no new evidence was presented. Nor was there a fundamental error of fact that would render his sentencing proceeding so irregular and invalid that relief under § 2255 would be appropriate. Court observes that if court believed defendant should not serve his entire 35-year sentence because of his good behavior in prison, it could have so advised the Parole Commission, which has the power to modify pre-Guidelines sentence in view of the prisoner’s conduct during incarceration. United States v. Bokun, 73 F.3d 8 (2d Cir. 12/27/1995) (Lumbard, Edward J.). Right to Counsel District court properly vacated state affirmance of conviction of petitioner who alleged excessive appellate delay, because court-appointed counsel who filed appeal had conflict, resulting from his own recalcitrance, from complaint filed against him by petitioner and from shoddy appellate performance. Mathis v. Hood, 937 F.2d 790 (2d Cir. 6/28/1991) (Pratt, George C.). Right to Testify Considering an issue of first impression in the circuit, court holds that the decision whether a defendant should testify at trial is for the defendant to make, that trial counsel’s duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right and that the two-part test in Strickland v. Washington, 466 U.S. 668 (1984), should be used to assess a defendant’s claim that defense counsel rendered ineffective assistance by preventing him from testifying

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or at least failing to advise him concerning his right to testify. In this murder case, however, defendant failed to satisfy the prejudice prong of Strickland, because his proffered testimony would not have satisfied the “retreat” requirement of a justification defense. Brown v. Artuz, 124 F.3d 73 (2d Cir. 8/6/1997) (Newman, Jon O.). State Constitutional Claims Denial of state constitutional right to counsel cannot provide grounds for federal habeas corpus relief. Knapp v. Leonardo, 46 F.3d 170 (2d Cir. 1/24/1995) (Mahoney, Daniel J.). Sufficiency of Evidence Court rejects claim, in habeas proceeding, that defense counsel at defendant’s state court trial was ineffective for failing to preserve sufficiency claim regarding charge of depraved indifference murder, finding instead that evidence was sufficient to prove depraved indifference murder where defendant fired a single shot from inside a house, at some distance across the street, into a crowd of people, and did not pursue the victim even when it initially appeared that the victim was not mortally wounded by the shot. Parker v. Ercole, 666 F.3d 830 (2d Cir. January 23, 2012) (per curiam). After first agreeing that defendant’s default of issue was excused for cause and prejudice, court rejects argument that evidence was insufficient to support conviction for depraved indifference murder, finding that even certain one-on-one stabbing murders can support such a conviction, including here, where evidence supported conclusion that defendant wielded knife recklessly during struggle and defendant said he didn’t know why he stabbed the victim. Gutierrez v. Smith, 702 F.3d 103 (2d Cir. December 11, 2012) (Calabresi). Court affirms denial of habeas petition brought by defendant convicted in state court of depraved indifference murder on an aiding and abetting theory, holding that New York law had not yet changed at the time the Court of Appeals decided People v. Hafeez, 100 N.Y.2d 253 (2003), and that, on the pre-existing “Register-Sanchez” law, there was a factual basis for a rational juror to conclude that the murder was reckless and not intentional, as the initial shot may have been fired by accident, even though subsequent shots to the head appear to have been clearly intentional. Court also questions whether, under New York Penal Law § 2, the people must prove that the aider and abettor shared the mental state of the principal. Epps v. Poole, 687 F.3d 46 (2d Cir. June 21, 2012) (Cabranes). Court rejects petitioner’s argument that the evidence at his state court murder trial did not support his conviction for depraved indifference murder but rather only of intentional murder. Court finds, assuming there was no procedural default of the issue, that under the “doubly deferential” standard of review applicable to habeas petitions challenging state court sufficiency findings, the evidence supported the jury’s verdict, where defendant impulsively sought out the victim hours before the attack, which occurred on a public street, and struck multiple blows with his knife in the direction of both the victim and her daughter. Defendant then left the scene and, when arrested, inquired into the victim’s condition. Garbutt v. Conway, 668 F.3d 79 (2d Cir. February 9, 2012) (per curiam). Reversing its previous order affirming grant of habeas, court finds that, pursuant to a rereading of the trial transcript it has determined that the jury’s verdict of depraved indifference murder – rather than intentional murder – was reasonable because jury may have decided, based on defendant’s testimony that he had used heroin three times the day of the shooting, that defendant was high when the shooting

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occurred and therefore did not act intentionally but rather with depraved indifference. Herbert, 507 F.3d 111 (2d Cir. September 19, 2007) (Sack).

Policano v.

Court reverses grant of habeas corpus to defendant convicted of murder. District court, in finding evidence insufficient, wrongly acted as a “thirteenth juror,” ignoring the reasonable inference of guilt that jury could have drawn from the evidence. Mishler concurs in the result. Quartaro v. Hanslmaier, 186 F.3d 91 (2d Cir. 7/21/1999) (Van Graafeiland, Ellsworth A.). There is no per se rule that a court reviewing the sufficiency of the evidence on a habeas petition must review the entire state court trial record. It is the petitioner’s burden to state the grounds for the insufficiency claim, and the court need do no more than review those portions of the record pertinent to those grounds. Presumptively, a review of the portions of the record submitted earlier to a state appellate court in support of the insufficiency claim is adequate. Malsh v. Hanslmaier, 102 F.3d 69 (2d Cir. 12/12/1996) (per curiam). Voluntariness of Statements Disagreeing with defendant, court holds that, on collateral review of the voluntariness of a waiver of Miranda rights, the petitioner bears the burden of proving that his waiver was not voluntary. Court distinguishes Miller v. Fenton, 474 U.S. 104 (1985) (on federal collateral review, the “ultimate question” of whether a confession was obtained in an unconstitutional manner “is a matter for independent federal determination,” while “subsidiary factual questions” resolved by the state courts are entitled to the presumption of correctness dictated by 28 U.S.C. § 2254(d)). Whitaker v. Meachum, 123 F.3d 714 (2d Cir. 9/5/1997) (per curiam). Harmless Error Analysis In decision granting habeas to state defendant convicted of murder whose Fifth Amendment right to counsel was violated when the police took his videotaped confession after he had invoked his right to counsel, court observes that the appropriate test of harmlessness on habeas – regardless whether or not the state court found constitutional error and reached the issue of harmlessness – is the Brecht standard, i.e., whether the error had “substantial and injurious effect.” Livingston dissents. Wood v. Ercole, 644 F.3d 83 (2d Cir. May 4, 2011) (Lynch). Court notes two current lines of harmless error analyses in habeas corpus cases, the first, whether the error had “substantial and injurious effect” under Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), and the second, whether the state court applied harmless-error review in an “objectively unreasonable manner” as directed by the AEDPA. Court, however, rules it need not determine which of these two standards (or both) should be applied, as the confrontation and Miranda errors that occurred here were harmless under either standard, given, inter alia, the strength of the prosecution’s case. Perkins v. Herbert, 596 F.3d 161 (2d Cir. February 23, 2010) (Trager, D.J.). Court reverses grant of habeas based on state trial court’s curtailment of cross-examination of the complaining witness regarding her past allegations of sexual abuse by others, finding the error harmless in light of the considerable cross-examination that was permitted and the overwhelming evidence of guilt. Court finds it unnecessary, once again, to define the appropriate harmless error test under the AEDPA. Benn v. Greiner, 402 F.3d 100 (2d Cir. 3/9/2005) (Sotomayor, Sonia). In reviewing a state court’s harmless error determination, court only may reverse determinations that are objectively unreasonable. The pertinent state court determination is whether the prosecution proved beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

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Here, court holds that the appellate division’s determination that admission of petitioner’s confession was harmless error was an objectively unreasonable application of Supreme Court precedent in this murder case where the principal witness against defendant may have been the killer. Court also observes that at the first trial, which ended in a hung jury, the prosecution did not emphasize the confession, but at the second trial, which ended in conviction, the prosecutor did. Raggi dissents. Zappulla v. People of the State of New York, 391 F.3d 462 (2d Cir. 11/17/2004) (Pooler, Rosemary S.) (amended December 7, 2004). When a state appellate court explicitly engages in harmless error review, a habeas court must assess whether the state court unreasonably applied Supreme Court precedent governing direct review of constitutional error. Here, without reaching question whether admission of 911 tape was error, court holds that finding of harmless error was a reasonable application of Chapman harmless error analysis. Gutierrez v. Michael McGinnis, 389 F.3d 300 (2d Cir. 11/15/2004) (Sotomayor, Sonia). Hearings Affirming denial of habeas petition brought to redress allegedly improper exclusion of defendant’s wife during undercover officer’s testimony, court holds that district court properly held a Nieblas hearing to determine whether the exclusion was justified and that the state trial court’s decision to exclude the wife was not an unreasonable application of clearly established federal law, as determined by the Supreme Court. Court issues amended opinion to clarify that Waller v. Georgia, 467 U.S. 39 (1984), prevents a court from denying a family member’s request to be exempted from the courtroom closure order unless the court is convinced that the exclusion of that particular relative is necessary to protect the overriding interest at stake. However, the appropriate analysis under the AEDPA must address only Supreme Court law and cannot rely on circuit court decisions. Sevencan v. Herbert, 342 F.3d 69 (2d Cir. 8/7/2003) (Cabranes, Jose A.). Per Williams v. Taylor, 529 U.S. 420 (2000), the Supreme Court held that the restrictions of 28 U.S.C. § 2254(e)(2) on a petitioner’s ability to obtain an evidentiary hearing where there has been a “fail[ure] to develop the factual basis of a claim,” only apply when “there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Channer v. Brooks, 320 F.3d 188 (2d Cir. 2/13/2003) (per curiam). District court erred in not granting a hearing to petitioner upon his facially sufficient habeas petition, alleging attorney conflict. Ciak v. United States, 59 F.3d 296 (2d Cir. 5/25/1995) (Cabranes, Jose A.). Denial of habeas corpus petition based on alleged involuntariness of confession is vacated and remanded, because the record indicates that the district court erroneously believed that it was without discretion to hold a hearing and enlarge the record. Although a hearing is required only when the petitioner can establish both cause for his failure to develop an adequate factual record and prejudice resulting from that failure, court retains discretion to hold a hearing. Pagan v. Keane, 984 F.2d 61 (2d Cir. 1/19/1993) (Newman, Jon O.). Where record of state proceedings appears to indicate that the state trial court found the testimony of the people’s witnesses credible and made requisite factual findings to support the conclusions necessary to deny the motion to suppress, the district court did not err in not holding an evidentiary hearing. Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 12/12/1989) (Meskill, Thomas J.). In-Custody Requirement - See Custody (this heading)

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Indigents Indigent prisoner entitled to free transcript on appeal, even if his friends had money and retained a lawyer for him. Fullan v. Commissioner, 891 F.2d 1007 (2d Cir. 12/12/1989) (Kearse, Amalya Lyle). Jurisdiction Where defendant was on bail pending appeal, the proper district to bring a habeas corpus petition under § 2241 was in the district in which bail was set. United States v. Arthur, 376 F.3d 93 (2d Cir. 5/11/ 2004) (Pooler, Rosemary S.). Restrictive language in the Foreign Affairs Reform and Restructuring Act did not repeal habeas jurisdiction with respect to the rights created thereunder, because, per INS v. St. Cyr, 533 U.S. 289 (2001), any limitation of federal habeas corpus must be by express command, and the FARRA makes no mention of habeas corpus review. Further, under the IIRIRA and AEDPA, federal court may still review under habeas corpus claims of erroneous application or interpretation of statutes. Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2/6/2003 (Cabranes, Jose A.). District court could consider, under 28 U.S.C. § 2254(a), claim by state prisoner that he was being improperly denied a free transcript for appeal, where state appellate court would not accept his appeal without a transcript. Fullan v. Commissioner, 891 F.2d 1007 (2d Cir. 12/12/1989) (Kearse, Amalya Lyle). Though state defendant couched petition in terms of habeas corpus, it seems he is really asking for relief in nature of mandamus or prohibition in asking that original jurors be reinstated, and state court be forbidden from applying Batson v. Kentucky, 476 U.S. 79 (1986), against him (i.e., cannot exercise peremptory challenges on discriminatory basis). Davis v. Lansing, 851 F.2d 72 (2d Cir. 6/30/1988) (Meskill, Thomas J.). A prisoner in federal custody can bring habeas challenging a consecutive state sentence where no detainer based on the consecutive sentence was lodged. Frazier v. Wilkinson, 842 F.2d 42 (2d Cir. 3/21/1988) (Newman, Jon O.). Limitations Period/Timeliness/Laches Court vacates dismissal of habeas petition as untimely, finding that district court misapplied the factors enumerated in Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004), which address when untimeliness may be excused – i.e., (1) “the purpose for which the petitioner retained the lawyer,” (2) “his ability to evaluate the lawyer’s performance,” (3) “his financial and logistical ability to consult other lawyers or obtain new representation,” and (4) “his ability to comprehend legal materials and file the petition on his own” – in the context of the claim by petitioner that his attorney essentially abandoned his responsibilities and failed to file for timely relief, notwithstanding repeated assurances that he would do so. Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27 (2d Cir. November 10, 2015), as corrected (Nov. 12, 2015) (Walker). Where circuit court affirms a defendant’s conviction and sentence but remands for recalculation of restitution order, one year imitations period for filing a 28 U.S.C. § 2255 motion begins to run only when court issues the revised final restitution order. Thus a litigant may wait – but is not required to wait – until the substantive proceedings are completed before collaterally attacking his conviction. Gonzalez v. United States, 792 F.3d 232 (2d Cir. July 2, 2015) (p.c.).

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The timeliness of a habeas corpus petition under the one-year statute of limitations runs from the Supreme Court’s denial of a writ of certiorari, not from the denial of a petition for rehearing of the denial of certiorari. Rosa v. United States, 785 F.3d 856 (2d Cir. May 13, 2015) (Raggi). Court affirms dismissal of habeas petition as untimely, holding that state court postconviction motions under CPLR Article 78 did not trigger statutory tolling of the federal habeas limitations period because they did not attack the underlying judgment. Collins v. Ercole, 667 F.3d 247 (2d Cir. January 26, 2012) (Livingston). Reversing the statute of limitations dismissal of habeas petition, court holds that where a habeas petitioner seeks to toll the one-year limitations period under the AEDPA for extraordinary circumstances (here, during period of petitioner’s hospitalization), he is required to demonstrate due diligence during the tolling period, but once the tolling period ends and the limitations clock resumes, a § 2254 petition is timely as long as it is filed (as here) before the total untolled time exceeds one year. Distinguishing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000), and Pace v. DiGuglielmo, 544 U.S. 408, 418, (2005). Harper v. Ercole, 648 F.3d 132 (2d Cir. July 26, 2011) (Raggi). Reversing dismissal of petition as untimely by one day, court finds that “extraordinary circumstances” required equitable tolling of the limitations period, given that client explicitly and repeatedly asked counsel not to wait until the last day to file, counsel assured the client he would not, but then in fact filed the petition on what he thought was the final date based on erroneous belief that the counting of the limitations period commenced on the day after leave to appeal was denied. Dillon v. Conway, 642 F.3d 358 (2d Cir. April 26, 2011) (per curiam). Court affirms dismissal, as untimely, of habeas petition alleging that trial counsel was ineffective in failing to accurately tell defendant the sentence he was facing should he be convicted after trial. Court rejects argument that the time to file should have been equitably tolled because New York law required him to obtain an affidavit from his trial attorney and that this proved difficult, since in fact an affidavit from counsel is not a condition precedent to filing the ineffectiveness claim if defendant adequately explains why he failed to provide one. Parker dissents. Jenkins v. Greene, 630 F.3d 298 (2d Cir. December 23, 2010) (Lynch). Court affirms the denial of habeas petition in notorious sex abuse case as untimely, but expresses concern about petitioner’s defense of actual innocence, which court says must first be exhausted in the state courts. One-year period to file the habeas after denial of leave to appeal by the New York State Appellate Division was not tolled by filing unauthorized leave application to New York Court of Appeals. Raggi concurs. Friedman v. Rehal, 618 F.3d 142 (2d Cir. August 16, 2010) (Korman, D.J.). One-year limitations period may be equitably tolled under the AEDPA where petitioner is mentally ill where it constitutes an “extraordinary circumstance” severely impairing petitioner’s ability to comply with the filing deadline despite her diligent efforts to do so. Court remands to district court to provide petitioner an opportunity to present evidence in support of equitable tolling. Bolarinwa v. Williams, 593 F.3d 226 (2d Cir. January 28, 2010) (Katzmann). Affirming dismissal of habeas petition as untimely, court holds that the one-year period for filing the petition is not stayed for the 30 days in which a petitioner can move (but does not move) for rehearing after the denial of a state collateral attack, as during that period no “properly filed application for State post-conviction relief… is pending,” per 28 U.S.C. § 2244(d)(2). Additionally, court rejects argument that equitable estoppel should apply where petitioner’s receipt of order denying leave to appeal § 440.10 motion to the Court of Appeals was delayed a few days because of holiday weekend; delay caused by a

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regularly scheduled holiday is not an “extraordinary circumstance.” Saunders v. Senkowski, 587 F.3d 543 (2d Cir. November 24, 2009) (per curiam). One-year statute of limitations under the AEDPA for filing a habeas corpus petition may be equitably tolled if a petitioner shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Examining three scenarios, court finds that two petitioners who said they filed late because they don’t speak English were not entitled to relief because they claimed nothing more than the unavailability of personnel within their prisons who could translate for them during the applicable limitations period. Third petitioner, however, was entitled to a period of tolling, since the Appellate Division sent him late notice of the order denying him leave to appeal the denial of his motion for relief under C.P.L. § 440.10, and he filed his petition one day after receiving notice. Diaz v. Kelly, 515 F.3d 149 (2d Cir. January 25, 2008) (Newman). Court affirms dismissal of prisoner’s pro se habeas petition as untimely and denies equitable tolling, finding that district court did not abuse its discretion in finding that prisoner, faced with a time crunch resulting from a lockdown of his facility, should have filed timely, unpolished petition rather than wait to file a more polished, but untimely petition. District court’s ruling on this ground was discretionary and therefore would be reviewed for abuse of discretion. Belot v. Burge, 490 F.3d 201 (2d Cir. June 20, 2007) (Leval). Applying the “mailbox rule” to a coram nobis filing, court holds that inmate’s coram nobis petition was deemed “properly filed” within the meaning of 28 U.S.C. § 2244(d) when it was delivered to prison officials for mailing and that subsequently filed habeas petition was therefore timely. Even though New York State law generally considers a motion filed only upon receipt, there is no time limit on a coram nobis application, and the date of filing, therefore, does not render it proper or improper. New York courts will, therefore, never have occasion to decide whether the prison mailbox rule should apply to them. Thus, there is no real conflict between state and federal law on the matter. Fernandez v. Artuz, 401 F.3d 111 (2d Cir. 3/17/2005) (Jacobs, Dennis G.). District court properly dismissed habeas petition as time barred. One-year period runs from when the time for filing a direct appeal expires. Moshier v. United States, 402 F.3d 116 (2d Cir. 3/17/2005) (per curiam). Court reverses grant of habeas based on state trial court’s curtailment of cross-examination of the complaining witness regarding her past allegations of sexual abuse by others, finding the error harmless in light of the considerable cross-examination that was permitted and the overwhelming evidence of guilt. Court finds it unnecessary, once again, to define the appropriate harmless error test under the AEDPA. Benn v. Greiner, 402 F.3d 100 (2d Cir. 3/9/2005) (Sotomayor, Sonia). Defendant’s habeas claim, alleging that his lawyer was conflicted because he followed order of co-defendant Gotti to focus on his case rather than his client’s, was timely under 28 U.S.C. § 2255(a)(4) because attorney was not willing to come forward with the relevant facts until Gotti died, and relevant facts therefore could not have previously been discovered using due diligence. LoCascio v. United States, 395 F.3d 51 (2d Cir. 1/12/2005) (Winter, Ralph K.). Even if limitations period for filing a habeas petition may be extended based on a showing of actual innocence, test requires finding, based on all the evidence, that no reasonable juror could convict defendant. Here, district court’s finding of actual innocence was based, inter alia, on clearly erroneous credibility findings with respect to both defendant, who now denies he molested boy after having previously confessed to doing so, and the victim, who now denies he was molested. Neither testimony constitutes new reliable evidence, as is required per Schlup v. Delo, 513 U.S. 298 (1995). Court also

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rejects claim that petitioner missed the limitations period because his attorney failed to timely file his petition, as the attorney was hired to file a 440 motion not a habeas petition, and in any event, petitioner did not act with reasonable diligence in attempting to file a timely petition. Court further rejects petitioner’s claim that he was unable to file his 440 motion pro se – which would have tolled the habeas limitations period – because of inadequate state court library materials, as his 440 claim was based on federal law, and petitioner could have prepared the motion using the available federal case law materials. Pooler dissents. Doe v. Menefee, 391 F.3d 147 (2d Cir. 11/19/2004) (Sotomayor, Sonia). Vacating dismissal of petition under 28 U.S.C. § 2255, court holds that its previous holding in Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001), does not always preclude application of equitable tolling in a case where a habeas petition is untimely because of the extraordinary actions of the petitioner’s counsel. An attorney’s conduct, if it is sufficiently egregious, may constitute the sort of “extraordinary circumstances” that would justify the application of equitable tolling to the one-year limitations period of AEDPA. Issue on remand is whether petitioner acted as diligently as reasonably could have been expected under the circumstances. Jacobs concurs. Baldayaque v. United States, 338 F.3d 145 (2d Cir. 7/30/2003) (Meskill, Thomas J.). Court remands habeas petition filed by defendant, convicted of murder and dismissed on statute of limitations grounds, for consideration of whether defendant makes out case of actual innocence and, if so, whether actual innocence claim must be heard on its merits notwithstanding that the limitations period has been exceeded. Whitley v. Senkowski, 317 F.3d 223 (2d Cir. 1/17/2003) (Calabresi, Guido). Attorney’s mistaken belief that the AEDPA’s one-year limitation period is re-set (rather than merely tolled) by pending state petitions for post-conviction review does not result in equitable tolling of the limitation period. Circuit reiterates that it, like other circuit courts, has found attorney error inadequate to create the “extraordinary” circumstances equitable tolling requires. Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 11/16/2001) (per curiam). At least in the circumstances of this case – where Article 78 proceeding was for discovery purposes and not to attack underlying conviction – the pendency of an Article 78 proceeding did not toll the one-year limitations period for commencing a habeas proceeding. Hodge v. Greiner, 269 F.3d 104 (2d Cir. 10/11/2001) (Newman, Jon O.). Addressing various issues regarding the one-year limitations period for filing a habeas corpus petition, court holds: (1) the one-year period begins when the Supreme Court denies certiorari; (2) the one-year period is not jurisdictional and therefore can be extended if a petition is filed with a motion to extend time, and extraordinary circumstances are shown; and (3) a timely motion for extension of time can be construed as a § 2255 motion for purposes of timeliness under the AEDPA. Here, however, petitioner had not articulated any basis in fact or in law for relief under § 2255 in his motion for additional time, and the district court therefore did not err by failing to treat his motion to extend time as a substantive § 2255 motion. Nonetheless, case is remanded to permit petitioner to file his petition within 60 days as the government concedes that it and the district court erroneously calculated when petitioner’s one-year period became final. Green v. United States, 260 F.3d 78 (2d Cir. 7/27/2001) (Meskill, Thomas J.). One-year statute of limitations to bring habeas petition was not tolled during the pendency of petitioner’s applications to the New York State Court of Appeals for leave to appeal the appellate division’s orders denying his two coram nobis motions, nor did the doctrine of equitable tolling apply during petitioner’s first period in solitary confinement. Coram nobis motions ceased to be pending on the dates they were denied by the appellate division, and initial period of solitary confinement should not be equitably tolled because petitioner failed to exercise reasonable diligence upon his return to standard

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confinement where he had access to legal materials. Hizbullahankhamon v. Walker, 255 F.3d 65 (2d Cir. 6/15/2001) (Sotomayor, Sonia). Court extends “prison mailbox rule,” applicable to filing notices of appeal, to petitions for writs of habeas corpus. Jacobs dissents. Noble v. Kelly, 246 F.3d 93 (2d Cir. 4/5/2001) (per curiam). Petitioner’s petition was timely because a state prisoner’s conviction becomes final for purposes of the one-year limitations period under the AEDPA, when a writ of certiorari has been denied by the United States Supreme Court or the time for seeking such a writ has expired. Williams v. Artuz, 237 F.3d 147 (2d Cir. 1/3/2001) (Winter, Jr., Ralph K.). In case involving the filing of a habeas by petitioner after he discovered that his attorney failed to file a timely notice of appeal, court vacates dismissal of habeas petition and holds that 28 U.S.C. § 2254(d) establishes the date on which the limitations period begins to run; that date is determined by when “the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” This is so regardless of whether petitioner actually discovers the relevant facts at a later date. Thus, the one-year limitations period under the AEDPA began when petitioner, using due diligence, would have realized his lawyer failed to file a notice of appeal on his behalf. This does not require petitioner to inquire immediately whether a timely notice was filed. Court remands for factual findings. Court notes with approval Tenth Circuit’s approach in which court said that, under the “due diligence” standard, a prisoner was charged with knowledge of facts contained in published legal opinions (and, accordingly, the limitations period began to run) on the date those opinions became available to the prison library, not on the earlier date on which they were issued. Wims v. United States, 225 F.3d 186 (2d Cir. 9/14/2000) (Calabresi, Guido). One-year limitations period of the AEDPA does not violate the Suspension Clause. Because petitioner failed to demonstrate “actual innocence,” court declines to consider whether the Constitution requires an “actual innocence” exception to the AEDPA’s limitation period. Lucidore v. New York State Div. Of Parole, 209 F.3d 107 (2d Cir. 4/6/2000) (Cabranes, Jose A.). Affirming the dismissal of a habeas petition as having been time-barred, court holds that the oneyear limitations period in the AEDPA begins on the date the defendant exhausts his state direct review and is merely tolled while his state collateral application is pending. Court thereby rejects argument that defendant’s filing of a coram nobis application, alleging ineffective assistance of appellate counsel, started the clock running anew. Court further holds that the one-year rule is not jurisdictional and therefore can be waived. But here, court rejects equitable tolling argument as the doctrine applies only in the rare and exceptional circumstance – not the case here. Smith v. McGinnis, 208 F.3d 13 (2d Cir. 3/13/2000) (per curiam). Reversing and remanding dismissal of habeas corpus petition, court holds that (1) AEDPA’s pending state-petition tolling provision applies to a petition challenging a pre-AEDPA conviction; (2) a state proceeding which was orally denied, but for which a final judgment was never served is still “pending” for purposes of 28 U.S.C. § 2244(d)(2); and (3) in determining whether the petition was “properly filed” per 28 U.S.C. § 2244(d)(2), court will not determine whether the underlying state court claim was procedurally barred. “Properly filed” simply means that an application for state postconviction relief recognized as such under governing state procedures has been filed. Bennett v. Artuz, 199 F.3d 116 (2d Cir. 10/25/1999) (Winter, Jr., Ralph K.). Court vacates district court’s order dismissing habeas petition as untimely and remands to develop further the facts relevant to the petitioner’s claim that a corrections officer prevented him from filing the petition on time by confiscating his legal papers shortly before the limitations period expired.

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Such conduct may justify equitable tolling and permit the filing of an otherwise late petition. Valverde v. Stinson, 224 F.3d 129 (2d Cir. 9/11/2000) (Sack, Robert D.). While a district court has the authority to raise the apparent untimeliness of a habeas petition on its own motion (notwithstanding that the habeas statute of limitations is non-jurisdictional and an affirmative defense), the courts below erred in dismissing petitions as untimely without providing petitioners prior notice and an opportunity to be heard. Dismissal without notice would be appropriate only where it is unmistakably clear, from the facts alleged in the petition, that the petition is untimely. Court observes that the one-year limitations period is tolled during the time that a properly filed application for state post-conviction review is pending and may be equitably tolled where appropriate. Acosta v. Artuz, 221 F.3d 117 (2d Cir. 8/9/2000) (Parker, Fred I.). Where petitioner voluntarily accepted dismissal of habeas petition to permit exhaustion of certain state claims, and in fact, did initiate further state proceedings and then refiled habeas after one-year limitations period had run, refilling did not relate back to the original petition and was untimely. Dismissal did not violate the Suspension Clause and equitable tolling was not available under these facts. Furthermore, the filing was untimely even if deemed a motion for relief from judgment under Fed.R.Civ.P. 60(b)(1). Warren v. Garvin, 219 F.3d 111 (2d Cir. 7/11/2000) (Meskill, Thomas J.) Four months that petitioner’s petition for a writ of error coram nobis was pending in New York are not counted toward the statutory one-year limit to bring a petition under 28 U.S.C. §§ 2254, 2255. Clark v. Stinson, 214 F.3d 315 (2d Cir. 6/1/2000) (Miner, Roger J.). Habeas petition filed 368 days (taking account for time stoppages while state collateral actions pending) after enactment of AEDPA was untimely, and no facts were presented justifying an equitable tolling of the one-year limitations period. Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 4/28/2000) (Van Graafeiland, Ellsworth A.). Court holds that AEDPA’s mandate, in § 2244, to toll its one-year limitations period during the pendency of “other collateral review” applies to properly filed federal habeas petitions, not only to applications for state review. Walker v. Artuz, 208 F.3d 357 (2d Cir. 3/27/2000) (Pooler, Rosemary S.) (Certiorari granted and reversed by Duncan v. Walker, 533 U.S. 167 (2d Cir. 6/18/01), in which the court determined that an application for federal habeas corpus is not an application for state post-conviction or other collateral review within the meaning of §2244(d)(2) and thus, §2244(d)(2) did not toll the limitation period during the pendency of the inmates first federal habeas petition). Motion before the New York State Court of Appeals for a “certificate granting renewal of direct appeal” in a case decided years earlier did not serve to toll the AEDPA’s one-year period within which a habeas corpus petition must be filed. Defendants may not create their own methods of seeking postconviction relief by availing themselves of a state court’s general motion practice. Adeline v. Stinson, 206 F.3d 249 (2d Cir. 3/14/2000) (per curiam). Court rejects argument that one-year limitations period of 28 U.S.C. § 2255 unconstitutionally infringes on the right to petition for habeas corpus, codified in the Suspension Clause, U.S. Art. 1 § 9, cl. 2. Court notes that in some cases, the one-year limitations period might be insufficient and that a denial of the review of a petitioner’s underlying claims might create serious constitutional questions aside from the Suspension Clause issue. Weaver v. United States, 195 F.3d 123 (2d Cir. 11/4/1999) (per curiam). On authority of Rodriguez v. Artuz, 990 F.Supp. 275 (S.D.N.Y. 1998), court rejects petitioner’s argument that the application of the one-year statute of limitations in 28 U.S.C. § 2244 effects an

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unconstitutional suspension of the writ. Rodriguez v. Artuz, 161 F.3d 763 (2d Cir. 12/21/1998) (per curiam). At n.2, court holds that, in fairness, and given the district court’s erroneous recharacterization of petitioner’s motion as one under 42 U.S.C. § 2255, court would deem the one-year limitations period for § 2255 motions tolled to afford petitioner an opportunity to file his first § 2255 motion, provided that he does so promptly. Adams v. United States, 155 F.3d 582 (2d Cir. 8/20/1998) (per curiam). Reversing dismissal of habeas petition as untimely, court holds that under the AEDPA, 28 U.S.C. § 2244(d)(1)(A), requiring that the petition be filed within one year after the conclusion of the state court direct review, litigants whose cases became final before the AEDPA will have at least a reasonable time after its enactment to file their petition. Where, as here, a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, a full year after the effective date of the AEDPA need not be accorded. However, the alternative of a “reasonable time” should not be applied with undue rigor. Here, the petition, filed 72 days after the effective date of the Act was timely, even though the petition was filed 23 years after conviction. Peterson v. Demskie, 107 F.3d 92 (2d Cir. 2/5/1997) (Newman, Jon O.) (Abrogation recognized by Muniz v. United States, 236 F.3d 122, 124 (2d Cir. 1/2/01), which held that all prisoners whose convictions became final prior to the effective date of AEDPA would be entitled to a full year after that date within which to file habeas corpus or §2255 petitions). Local Law and Precedent Reversing and remanding for further proceedings, court holds that Indian tribal finding of treason and imposition of banishment order against five petitioners was a “criminal sanction” sufficient to permit invocation of jurisdiction under the habeas corpus provisions of the Indian Civil Rights Act of 1968, and such banishment notices were a sufficient restraint on liberty to permit district court to entertain the writ. Jacobs dissents Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 5/16/1996) (Cabranes, Jose A.). Multiple Claims for Relief A petitioner may join in the same pleading a claim for habeas corpus and a civil rights claim and the district court erred in ruling otherwise. Thompson v. Choinski, 525 F.3d 205 (2d Cir. May 8, 2008) (Leval). Persistent Felony Offenders – See SENTENCING-Adjustments and DeparturesPrior/Persistent Felony Offenders Pro Se Litigants Even if petitioner, who styled claim as one under 28 U.S.C. § 2241, should have styled it under 42 U.S.C. § 1983, court should have simply corrected the mistake, as petitioner was proceeding pro se and his pleadings therefore should have been construed liberally. Thompson v. Choinski, 525 F.3d 205 (2d Cir. May 8, 2008) (Leval). Given policy of liberally construing pro se pleadings, court would construe motion made under Fed.R.Crim.P. 35 as a motion under 28 U.S.C. § 2255. As such, appellant’s November 5, 1990 letter, inquiring of status of motion and stating desire to appeal, would be considered timely notice of appeal. United States v. Detrich, 940 F.2d 37 (2d Cir. 7/29/1991) (Winter, Jr., Ralph K.).

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Reversing dismissal of pro-se petition in interest of justice to permit participation of counsel. Mulero v. LeFevre, 873 F.2d 534 (2d Cir. 4/10/1989) (Sprizzo, John E.). Procedural Default – See also Exhaustion Generally Defendant’s habeas argument against his money laundering conviction, based on a claim that the moneys he re-invested into his asbestos abatement business were not “proceeds” as defined in United States v. Santos, 553 U.S. 507 (2008), was procedurally barred as he did not raise this argument in a sufficiently related form on direct appeal, but rather made the different argument that “the investment of ill-gotten ‘profits’ into legitimate business expenses did not constitute ‘promotion of specified unlawful activity.’” Court rejects argument that the failure to raise the issue on direct appeal should be excused because the issue was so novel as to not have been available to counsel, since “The futility test to excuse a default is strict: ‘the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all.’” United States v. Thorn, 659 F.3d 227 (2d Cir. October 20, 2011) (Raggi). Court affirms denial of habeas finding that counsel’s comments, after off-the-record conference at which court excluded defendant’s 12-year old brother from the courtroom as too young, did not clearly reflect an objection to the exclusion but rather acquiescence in the ruling, and the state court’s finding of waiver was not an exorbitant application of New York’s contemporaneous objection rule, which, the court finds, is firmly established and regularly followed. Court rejects argument that trial courts must, under Waller v. Georgia, 467 U.S. 39 (1984), sua sponte consider alternatives to closing the courtroom where no objections are made. Chin dissents. Downs v. Lape, 657 F.3d 97 (2d Cir. September 14, 2011) (Lohier). Reversing grant of habeas in state murder case, court holds that state court’s ruling that defendant, by failing to object, defaulted on issue – namely, that the trial court should have informed the jury at defendant’s second trial when it admitted previous testimony of now-unavailable witness that the witness supposedly had recanted his earlier testimony – was an “adequate and independent state law ground” that precluded federal review. Distinguishing Lee v. Kemna, 534 U.S. 362 (2002). Whitley v. Ercole, 642 F.3d 278 (2d Cir. June 7, 2011) (Livingston). Although recognizing the “force” of petitioner’s argument, court holds that petitioner failed to argue in state court – and therefore was procedurally barred from arguing in federal court – that he was unconstitutionally convicted of possessory drug offenses under state law because all his conduct occurred outside New York state and was not intended to have a detrimental effect within the state. Under the AEDPA, the circuit court will consider the state’s default argument even where the state failed to assert default in the district court, since it did not expressly and clearly waive the argument. 28 U.S.C. § 2254(b)(3). Carvajal v. Artus, 633 F.3d 95 (2d Cir. January 25, 2011) (Jacobs). Court reverses grant of habeas to former Weather Underground member serving life sentence after state court murder/robbery conviction, agreeing with state court finding that defendant, who proceeded to trial pro se, procedurally defaulted upon claim that she was denied effective assistance of counsel by failing to bring direct appeal, as the facts relevant to the claim were clear on the record and the state’s application of the requirement that claims be raised on direct appeal cannot be described as “exorbitant.” Clark v. Perez, 510 F.3d 382 (2d Cir. January 3, 2008) (Jacobs). State court’s finding that defendant had failed to preserve issue whether his identification should have been excluded because of civilian-orchestrated suggestive circumstances, was an independent and adequate state ground for the state court’s ruling and would be honored by federal court since the state rule is firmly established, regularly followed and not exorbitant. The fact that the defendant had declared

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that the identification was suggestive because he was in police custody at the time of the identification did not put the trial court on notice that there might be a legal issue as to whether a civilian-facilitated identification could be problematic as well. Straub dissents. Garvey v. Duncan, 485 F.3d 709 (2d Cir. May 9, 2007) (Cardamone). Defendant could properly raise on habeas corpus his Crawford issue. An exception to the law of the case doctrine – which is not jurisdictional – is available where, as here, new law was decided between the time of the circuit court’s decision and the time by which a petition for certiorari was to be filed (even though none in fact was filed). Additionally, since Crawford was decided within the allotted time to file certiorari, the non-retroactivity of Crawford was irrelevant. United States v. Becker, 502 F.3d 122 (2d Cir. September 13, 2007) (Parker, B.D.). Though reversing grant of habeas, finding that defendant was not misled by court’s instruction that defendant “could” be deported rather than “will” be deported as a result of his conviction, court observes that defendant’s failure to raise the issue on direct appeal would be excused if the statements of court and counsel were affirmatively misleading and prejudicial. Zhang v. United States, 506 F.3d 162 (2d Cir. October 23, 2007) (Winter). Court will not find a procedural default where the state court’s procedural ruling was “interwoven” with the court’s rejection of the federal law claim on the merits (here, involving the application of Apprendi to a persistent felony offender finding and whether the “mode of proceedings” exception to the rule barring consideration of unpreserved issues would apply). Brown v. Miller, 451 F.3d 54 (2d Cir. June 7, 2006) (Sotomayor). Court holds that the Harris conclusive presumption applies to habeas cases under the AEDPA; i.e., when a state court decision fairly appears to rest primarily on federal law, and when the adequacy and independence or any possible state law ground is not clear from the face of the opinion, court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. Here, state court’s use of “either/or” language compels conclusion that decision rested on the merits of the federal claim under the Harris presumption because there is no plain statement to the contrary. Jimenez v. Walker, 458 F.3d 130 (2d Cir. July 31, 2006) (Walker). State court’s application of the contemporaneous objection requirement to reject argument that the trial court violated the judicial supervision requirement when, on several occasions during trial, the court allowed the jury to review admitted exhibits on breaks in the jury room, outside the presence of the court and the parties, was not an adequate and independent bar to habeas review, since the state courts, in this context, have not uniformly applied the contemporaneous objection rule. The question of when and how defaults in compliance with state procedural rules can preclude consideration of a federal question is itself a federal question. See Lee v. Kemna, 534 U.S. 362 (2002); Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003). Court remands for a determination of the merits and whether, because the intermediate appellate court reached the merits of petitioner’s judicial supervision claim, federal court should review the intermediate appellate court’s decision using AEDPA deference, or whether, in light of the state supreme court’s erroneous holding as to a procedural bar, court should consider petitioner’s claim de novo. Monroe v. Kuhlman¸ 433 F.3d 236 (2d Cir. January 3, 2006) (Straub). Court rejects state court’s conclusion that defendant defaulted upon Batson claim where defendant explicitly challenged the prosecution’s peremptory strikes under Batson, alleging “that the People are discriminating on race” by striking only Hispanic and Black venire persons during the first two rounds of selection. Court says it need not accept the state court’s determination of default where, as here, the question of whether the objection was sufficiently specific to constitute a prima facie case under Batson merges the preservation issue with the adequacy of a prima facie case under Batson. The

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procedural rule, therefore, is not independent of federal law. Green v. Travis, 414 F.3d 288 (2d Cir. 7/7/2005) (Sotomayor, Sonia). Court affirms denial of habeas petition in state murder case because defendant defaulted upon issue whether testimony of his aunt and a 911 tape were wrongly excluded from evidence. Defendant’s leave letter did not mention the exclusion of his aunt’s testimony, and the 911 issue was not argued in state court on constitutional grounds, but rather solely on evidentiary grounds. Smith v. Duncan, 411 F.3d 340 (2d Cir. 6/21/2005) (Wesley, Richard C.). State court’s citations to authority were not sufficiently specific to permit federal court to find a clear procedural bar as to issues otherwise described as either to lack merit or to be unpreserved. DeBerry v. Portuondo, 403 F.3d 57 (2d Cir. 4/4/2005) (Pooler, Rosemary S.). Vacating grant of habeas corpus court finds that state appellate court unambiguously found that defendant had failed to preserve Batson argument with respect to each of four jurors. Rodriguez v. Schriver, 392 F.3d 505 (2d Cir. 11/22/2004) (Berman, Richard M.). Petitioner’s failure to exhaust administrative remedies while he was in the custody of NYCDOC properly resulted in the dismissal of his habeas petition with prejudice; his appeal was therefore frivolous, and he was not entitled to counsel. Berry v. Kerik, 366 F.3d 85 (2d Cir. 9/25/2003, amended April 29, 2004)(Newman, Jon O.). Appellate counsel unjustifiably failed on direct appeal to argue that trial counsel rendered ineffective assistance by failing to object to trial court’s instructions that jury could find defendant guilty of both murder and manslaughter, which are inconsistent, and jury in fact returned a verdict of guilty as to both, which counsel did not object to either. Counsel’s failure to raise this issue on direct appeal resulted in a procedural default, because the appellate record was complete, and the issue therefore ripe. This finding is not inconsistent with the Supreme Court’s decision in Massaro v. United States, 538 U.S. 500 (2003), which held only that in § 2255 petitions (i.e., from a federal conviction), there is no procedural default for failure to raise an ineffective assistance claim on direct appeal even if the relevant facts are in the record. Court further rejects argument that default should be forgiven because defendant must have been actually innocent of one of the two inconsistent counts of which he was convicted – one of which required intentional conduct and the other recklessness. Walker concurs. Sweet v. Bennett, 353 F.3d 135 (2d Cir. 12/19/2003) (Parker, Fred I.). Court declines to find that petitioner defaulted in state court upon claim that his confrontation rights were violated by trial court’s order precluding him from cross-examining witness whose testimonial reticence he supposedly procured. Although the state court of appeals concluded that this contention “was not raised by objection before the trial court and is thus unpreserved for our review,” court applies factors addressed in Lee v. Kemna, 534 U.S. 362 (2002), and finds that the supposed state law requirement that defendant object after the ruling was not “firmly established and regularly followed” in the instant circumstances. Trial court could not have doubted that counsel wanted to cross-examine the witness Echevarria, and the trial court expressly decided the issue. In any event, petitioner’s counsel substantially complied with the rule given the “realities of trial.” Cotto v. Herbert, 331 F.3d 217 (2d Cir. 5/1/2003) (Straub, Chester J.). Court would not find procedural default of issue regarding defendant’s right to present a defense where the state court did not clearly and expressly state that its judgment rested on a procedural bar. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). Jones v. Stinson, 229 F.3d 112 (2d Cir. 10/5/2000) (Pooler, Rosemary S.).

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Declining to extend Quirama v. Michele, 983 F.2d 12 (2d Cir. 1993), court holds that when a state court uses language such as “the defendant’s remaining contentions are either unpreserved for appellate review or without merit,” the validity of the claim is preserved and is subject to federal review. Court notes, at n.4, however, that issue will be defaulted if state court says the claim is “not preserved for appellate review” and “in any event” lacks merit. Fama v. Commissioner of Correctional Services, 235 F.3d 804 (2d Cir. 12/21/2000) (Calabresi, Guido). Court dismisses habeas alleging wrongful exclusion from courtroom of mother’s companion during undercover officer’s testimony, because state court had found that the specific issue of the companion’s exclusion -- as opposed to the general exclusion of all persons not related to defendant -had not been properly preserved. Court finds that the state court’s finding of default was adequate and not a ruse to deny defendant his constitutional rights. Counsel’s purported objection to the companion’s exclusion merely sought clarification of the court’s previous ruling that the courtroom would be closed to all but the defendant’s “close relatives.” Garcia v. Lewis, 188 F.3d 71 (2d Cir. 8/2/1999) (Meskill, Thomas J.). Addressing issue sua sponte (on theory that government could not have been expected to raise default issue where prior case law excused default in case raising Bailey issue), court finds that defendants defaulted on Bailey issue by not raising it on direct appeal. Although the circuit previously had said, in dictum, that a defendant is excused from raising a Bailey claim on direct appeal where the circuit’s clear law precluded the argument and raising the claim would therefore have been futile, a contrary conclusion was reached by the Supreme Court in Bousley v. United States, 523 U.S. 614 (1998) (“futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time”). Additionally, defendants could not excuse default by demonstrating “actual innocence,” because their own plea allocutions demonstrated they carried guns in violation of 18 U.S.C. § 924(c), either on theory of direct possession, or on Pinkerton theory of conspiratorial liability. Jacobs, J., concurs in the result but finds that defendants did not waive the issue, as they perhaps relied on existing circuit law. Rosario v. United States, 164 F.3d 729 (2d Cir. 12/18/1998) (McLaughlin, Joseph A.). Where the state court of appeals said, “We have examined the defendant’s remaining contentions and find them to be either meritless or unpreserved,” the federal courts will not assume the appeal was denied upon finding of a procedural default, and it will therefore address the claim, per Coleman v. Thompson, 501 U.S. 722, 735 (1991) (See also discussion in Hayes v. Coombe, 142 F.3d 517 (2d Cir. April 9, 1998) (per curiam)). Tankleff v. Senkowski, 135 F.3d 235 (2d Cir. 1/12/1998) (Calabresi, Guido). Reasonable doubt instruction does not act as a procedural bar where the appellate division ruled on the merits of his challenge without commenting on the apparent default. See Rosenfeld v. Dunham, 820 F.2d 52 (2d Cir. 1987). Beverly v. Walker, 118 F.3d 900 (2d Cir. 6/30/1997) (Van Graafeiland, Ellsworth A.). Issue whether defendant’s rights were violated by prosecutor’s references to defendant’s race was procedurally defaulted, as the state court’s alternative holding citing petitioner’s default in the trial court constituted an independent and adequate ground barring review of petitioner’s claim. Glenn v. Bartlett, 98 F.3d 721 (2d Cir. 10/24/1996) (Feinberg, Wilfred). Petitioner’s failure to make a contemporaneous objection does not bar petition based on defense counsel’s conflict, because petitioner was represented by the same counsel at trial and on appeal, and because some of petitioner’s conflict-of-interest claims involve matters outside the trial record. See BillyEko v. United States, 8 F.3d 111 (2d Cir. 1993. (Calabresi, Guido). Ciak v. United States, 59 F.3d 296 (2d Cir. 5/25/1995) (Cabranes, Jose A.) (Billy-Eko abrogated by Massaro v. United States, 538 U.S. 500 (2d Cir. 4/23/2003), in which the Court held that where defendant was represented by new counsel on appeal,

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and the prisoner’s claim of ineffective assistance of counsel was based solely on the trial record; the defendant’s failure to assert the claim on direct appeal did not bar the claim from consideration on collateral review). Petitioner was procedurally barred from bringing claim that the district court was obligated to sentence him in accordance with the plea agreement or permit him to withdraw the plea. Claim was found to be barred by state court, and petitioner failed to show “cause” for the default -- i.e., some objective factor external to the defense that impeded counsel’s efforts to raise the claim in state court. Court rejects argument that petitioner had been prohibited from speaking at sentencing, thereby impeding his ability to withdraw his plea after sentencing judge said petitioner had violated the plea and that judge therefore was no longer bound by it. Van Graafeiland concurs, but believes petitioner’s due process rights were violated where defendant had not been told at the time of the plea that judge could give him any sentence he wished if defendant failed to abide by the agreement. Levine v. Commissioner of Correctional Services, 44 F.3d 121 (2d Cir. 1/3/1995) (McLaughlin, Joseph A.). A federal court may excuse a procedural default if a constitutional violation probably has resulted in the conviction of one who is actually innocent. Here, however, defendant who claimed, for the first time on habeas, that trial counsel wrongly failed to argue that petitioner killed the victim because he feared victim would rob him, did not demonstrate his actual innocence, as jury rejected his trial defense of self-defense which, under these facts, required the jury to accept the same scenario. Court also says that, to succeed on claim that appellate counsel was ineffective, petitioner must demonstrate not merely prejudice but actual innocence in order to overcome the applicable procedural bar. Court rejects petitioner’s effort to have his properly preserved claim of ineffectiveness reconsidered in light of the new, barred claim, saying “this attempt to invest his original claims with new meaning renders the claims new, and therefore procedurally defaulted. Lebron cannot avoid the requirement to exhaust state remedies by asking us to consider exhausted claims in light of a procedurally defaulted claim.” Finally, court rejects petitioner’s assertion that the state should be estopped from raising the procedural default bar to petitioner’s new claim due to a vague allusion to a potential claim in the state’s argument on direct appeal. Lebron v. Mann, 40 F.3d 561 (2d Cir. 11/14/1994) (Feinberg, Wilfred). District court properly found that petitioner had defaulted on Batson claim. Court applies presumption that where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. Here, trial court did not clearly reach the merits of petitioner’s Batson claim, which was raised post-trial after Batson was decided, and appellate division affirmed, without opinion, in the face of the state’s claim that the issue had been waived. State’s failure to argue waiver at the trial court level did not avoid procedural default. Though New York recognizes that the state may be held to have waived some forms of procedural default, this exemption does not apply to a defendant’s failure to observe procedural requirements designed to promote the “efficiency of the courts or ‘orderly trial procedures,’” quoting People v. Mezon, 80 N.Y.2d 155, 160 (1992). Epps v. Commissioner of Correctional Services, 13 F.3d 615 (2d Cir. 1/11/1994) (Newman, Jon O.). Defendant’s argument that trial court should have given the jury a manslaughter instruction because defendant may have killed victim in a pique had not been argued in the state court, and therefore was procedurally defaulted. Herring v. Meachum, 11 F.3d 374 (2d Cir. 12/9/1993) (Walker, Jr., John M.). Where defendant knowingly waived his right to a direct appeal, by not telling his attorney to file a notice of appeal, he waived his right to claim, on habeas, that he did not knowingly waive his right to a jury trial. Marone v. United States, 10 F.3d 65 (2d Cir. 11/22/1993) (per curiam).

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Claim of ineffective assistance of counsel may be brought for the first time by habeas corpus, rather than on direct appeal, except where defendant on appeal has a different appellate lawyer than his trial lawyer, and factual basis for claim is adequately developed in the record. Counsel should err on the side of caution, however, and, in questionable cases, raise the claim on direct appeal, suggesting, if appropriate, that case be remanded for an evidentiary hearing. Here, court denies the ineffectiveness claim on the merits. Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 10/25/1993) (Altimari, Frank X.) (Abrogated by Massaro v. United States, 538 U.S. 500 (2d Cir. 4/23/2003), in which the Court held that where defendant was represented by new counsel on appeal and the prisoner’s claim of ineffective assistance of counsel was based solely on the trial record, the defendant’s failure to assert the claim on direct appeal did not bar the claim from consideration on collateral review). Court sua sponte raises question whether petitioner defaulted on claim and finds that he did. Petitioner did not fairly present to the state courts the question whether the trial judge’s agency instruction was constitutionally infirm and deprived him of due process. Court will raise default issue sua sponte where government’s concession was an innocent error. Overlooking the default would not serve the principles of comity and federalism, and there has been no miscarriage of justice, as there has been no federal violation, which challenges the validity of the trial itself, nor has there been a federal violation motivated by malice. Accordingly, default may not be excused under either Murray v. Carrier, 477 U.S. 478 (1986), or Granberry v. Greer, 481 U.S. 129 (1987). Kearse concurs. Washington v. James, 996 F.2d 1442 (2d Cir. 6/29/1993) (Meskill, Thomas J.). Court reaffirms Martinez v. Harris, 675 F.2d 51 (1982), and holds that petitioner defaulted on claims where appellate court affirmed, without opinion, after state argued in its brief that appeal was procedurally barred, and there is no “good reason” to believe that the appellate division’s silence reflects a decision on the merits. See Coleman v., Thompson, 501 U.S. 722 (1991). Quirama v. Michele, 983 F.2d 12 (2d Cir. 1/4/1993) (Winter, Jr., Ralph K.). Court abandons the “deliberate by-pass” test for determining when a federal defendant has waived a claim under 28 U.S.C. § 2255 by failing to raise it on direct review and adopts the “cause and prejudice” test, which here, precludes habeas review of defendant’s Fourth Amendment claim. Campino v. United States, 968 F.2d 187 (2d Cir. 6/22/1992) (Lumbard, Edward J.). Where state appellate court rejected various of petitioner’s arguments, saying they were “either unpreserved for appellate review or without merit, court did not clearly and expressly state whether it had examined the merits of the missing witness claim or had relied on a procedural default, and claim was therefore properly subject to federal habeas corpus review per Harris v. Reed, 489 U.S. 255 (1989). Reid v. Senkowski, 961 F.2d 374 (2d Cir. 4/9/1992) (per curiam). Defendant defaulted on claim regarding alleged pattern of prosecutorial misconduct by not moving for a mistrial and failing to seek more forceful curative instructions on those issues as to which his objections had been sustained. Reardon v. Richardson, 956 F.2d 391 (2d Cir. 2/4/1992) (per curiam). Under Coleman v. Thompson, 501 U.S. 722 (1991), defendant forfeited his ineffectiveness claim by not raising it on direct appeal, and where coram nobis court unambiguously stated that its judgment rested on the procedural bar. Rollins v. Leonardo, 938 F.2d 380 (2d Cir. 7/17/1991) (per curiam). Petitioner defaulted on various claims by failing to object at time of trial. Under Wainwright v. Sykes, 433 U.S. 72, 81 (1977), petitioner could not invoke the “deliberate and knowing waiver” standard of Fay v. Noia, 372 U.S. 391 (1963). Gonzalez v. Sullivan, 934 F.2d 419 (2d Cir. 5/28/1991) (Cardamone, Richard J.).

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Purported state procedural rule invoked by prosecutor would actually be a substantive rule, to wit, that it is an adequate remedy for the constitutional violations asserted to allow petitioner, after serving a substantial portion of his sentence, to withdraw his guilty plea and proceed to trial. Asserted rule is at odds with double jeopardy protections. Stewart v. Scully, 925 F.2d 58 (2d Cir. 2/1/1991) (Mahoney, Daniel J.). District court did not err in rejecting state’s claim of procedural default because, in finding claim unreviewable, state court first examined the record and determined that petitioner was not denied the fundamental right to a fair trial. Since resolution of the state procedural law question depended on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law. Bradley v. Meachum, 918 F.2d 338 (2d Cir. 11/2/1990) (Miner, Roger J.). In order to preclude federal review on the ground of procedural default, the state court’s waiver ruling must have rested on a state ground that is independent of federal law. Here, court does not view the Vermont Supreme Court’s plain-error analysis as independent of federal law and concludes, therefore, that the district court should have reached the merits of the claim. Roy v. Coxon, 907 F.2d 385 (2d Cir. 6/29/1990) (Kearse, Amalya Lyle). Where state failed to raise issue of procedural bar in state court, petitioner is not precluded from raising the claim in federal court. Blazic v. Henderson, 900 F.2d 534 (2d Cir. 4/2/1990) (Pierce, Lawrence W.). Reversing order dismissing habeas for procedural default under authority of Harris v. Reed, 489 U.S. 255 (1989), since appellate division affirmance of defendant’s conviction did not “clearly and expressly” state that its judgment rested on a state procedural bar; Harris is retroactive. Peterson v. Scully, 896 F.2d 661 (2d Cir. 2/7/1990) (Meskill, Thomas J.). Petitioner defaulted on various arguments, including ineffectiveness of counsel for not raising them on direct appeal, and state court made explicit finding that dismissal was based on procedural default per Harris v. Reed, 489 U.S. 255 (1989). Court additionally finds no reason to find the state’s procedural rule inadequate per Bar v. City of Columbia, 378 U.S. 146, 149 (1964). Arce v. Smith, 889 F.2d 1271 (2d Cir. 11/20/1989) (Metzner, Charles M.). Affirming dismissal of habeas for procedural default and rejecting argument that the issue of reviewability is itself a federal question and that the merits of a particular state procedural bar must be examined by federal courts. Jacquin v. Stenzil, 886 F.2d 506 (2d Cir. 9/28/1989) (Winter, Jr., Ralph K.). Even though people argued waiver in court of appeals, and court affirmed without opinion, no waiver is presumed or found because state courts do not require preservation of claims of ineffectiveness of counsel. Waterhouse v. Rodriguez, 848 F.2d 375 (2d Cir. 6/3/1988) (Winter, Jr., Ralph K.). Cause & Prejudice Doctrinal shift in state law regarding depraved indifference murder provided “cause” permitting consideration of sufficiency issue on habeas; objection would have been futile and the legal basis for a sufficiency claim was not available to counsel at the time of trial. Additionally defendant was prejudiced, since the jury might otherwise have convicted of lesser offense of manslaughter. But court denies habeas on the merits finding the evidence sufficient to support depraved indifference. Gutierrez v. Smith, 702 F.3d 103 (2d Cir. December 11, 2012) (Calabresi).

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State procedural rule, that defendant could not raise issue for the first time on second motion under CPL § 440.10, of trial counsel’s failure to have petitioner evaluated by psychiatrist, was adequate to preclude federal habeas corpus review of claim. The state procedural bar was firmly established and regularly followed, and therefore was “adequate”, even if its application is discretionary. The state’s ruling was independent of a determination of federal constitutional law, and petitioner failed to demonstrate “cause and prejudice” for the procedural default -- or actual innocence. Petitioner’s argument that he was denied effective assistance of counsel who represented him on the first Article 440 motion is rejected because there is no constitutional right to an attorney in state post-conviction proceedings where such proceedings are not the first appeal as of right. Court rejects, however, adequacy of state “440” court’s finding that petitioner defaulted on claim that trial counsel was inadequate because he failed to interview or call witnesses to support his EED defense because he had mentioned the claim at sentencing but failed to raise it on direct appeal; the state failed to show that the state courts regularly demand compliance with this rule -- CPL § 440.10(2)(c). Court, however, denies relief on the merits. Hall concurs. Murden v. Artuz, 497 F.3d 178 (2d Cir. August 10, 2007) (Cote). Petitioner’s failure to raise insufficiency claim in state court would not be excused for cause and prejudice. The applicable state law was not so clearly against petitioner as to suggest that any effort to raise the issue would have been futile, and claim of ineffectiveness of state appellate counsel could not be raised for the first time in federal court, but rather must have been raised in a state coram nobis proceeding. DiSimone v. Phillips, 461 F.3d 181 (2d Cir. August 22, 2006) (Calabresi). Each claim of ineffective assistance of trial counsel was waived by failure to raise the issue on direct appeal in state court, and petitioner failed to show cause and prejudice for the defaults. When determining whether the state court decided defendant’s appeal on an independent state ground, court will apply the rule that when the state court’s decision fairly appeared to rest primarily on resolution of the petitioner’s federal claims, or to be interwoven with those claims, and did not clearly and expressly rely on an adequate and independent state ground, a federal court may address the petition. In the absence of such a reliance on federal law, the Harris presumption of reviewability evaporates and “federal habeas courts must ascertain for themselves if the petitioner is in custody pursuant to a state court judgment that rests on independent and adequate state grounds.” Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 10/5/2001) (McLaughlin, Joseph A.). Under Bousley v. United States, 523 U.S. 614 (1998), if a petitioner fails to assert a claim on direct review he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom, or that he is “actually innocent” of the crime for which he was convicted. Here, defendant’s failure to raise claim pertaining to his conviction under 21 U.S.C. § 924(c) per Bailey v. United States, 516 U.S. 137 (1995), is not excused under the futility doctrine because, although the Bailey argument had been rejected by the Second Circuit, it had been accepted elsewhere. Defendant therefore cannot show “cause” and, given the evidence, cannot show actual innocence. DeJesus v. United States, 161 F.3d 99 (2d Cir. 10/22/1998) (Vance, Sarah S.). Petitioner failed to show cause and prejudice for his failure to attack the sufficiency of the evidence under 18 U.S.C. § 924(c) on direct appeal, and the issue was therefore not properly before the court upon motion under 28 U.S.C. § 2255. United States v. Munoz, 143 F.3d 632 (2d Cir. 4/22/1998) (Lay, Donald P.). Petitioner procedurally defaulted upon claimed error in reasonable doubt instruction by failing to object at trial. Although a showing of ineffective assistance of counsel may satisfy the “cause” prong of the “cause and prejudice” test, that claim may not be made for the first time in federal court. By virtue of having failed to raise the ineffectiveness argument in state court, petitioner is found to have exhausted

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that claim -- as he has defaulted upon it in state court and therefore may not return there to raise it -- but by such default he also has forfeited upon the claim in federal court; a petitioner may not bring an ineffectiveness claim as cause for a default when that ineffective assistance claim itself is procedurally barred. Reyes v. Keane, 118 F.3d 136 (2d Cir. 7/24/1997) (Miner, Roger J.). Petitioner failed to object to allegedly improper portions of prosecutor’s summation and failed to demonstrate “cause and prejudice” to justify relief. Vargas v. Keane, 86 F.3d 1273 (2d Cir. 5/30/1996) (Cabranes, Jose A.). Applying Coleman v. Thomson, 501 U.S. 722 (1991), and Harris v. Reed, 489 U.S. 255 (1989), court holds that defendant defaulted on his claim where he failed to seek leave to appeal from the denial of his state 440 motion and appellate division dismissed the appeal as procedurally barred. Fact that appellate division also said it would have denied claims on their merits even if they had not been barred did not mean court had not relied on the independent and adequate state procedural bar. Petitioner failed to show that this procedural rule is not strictly or regularly followed. Deliberate bypass analysis is not applicable, rather cause and prejudice test is, and further, defendant failed to demonstrate a fundamental miscarriage of justice. Wedra v. LeFevre, 988 F.2d 334 (2d Cir. 3/11/1993) (Meskill, Thomas J.). Reversing grant of habeas relief for Bruton violation, court holds that, at the time of the petitioner’s trial, the applicability of the interlocking confessions exception to a particular trial was sufficiently unsettled to have merited an objection on Bruton grounds, notwithstanding the plurality opinion in Parker v. Randolph, 442 U.S. 62 (1979), which was later overruled in Cruz v. New York, 481 U.S. 186 (1987). Accordingly, the existence of Parker was not excusable “cause” for the default. Fernandez v. Leonardo, 931 F.2d 214 (2d Cir. 4/30/1991) (Altimari, Frank X.). Defendant defaulted as to three issues regarding which state appellate court alternatively found procedural default and lack of substantive merit. No cause and prejudice demonstrated. However, as to fourth issue, no default found in absence of state judgment “clearly and expressly” resting on state procedural bar. See Harris v. Reed, 489 U.S. 255 (1989). Velasquez v. Leonardo, 898 F.2d 7 (2d Cir. 3/7/1990) (per curiam). Fact that Sandstrom v. Montana, 442 U.S. 510 (1979) was not decided until petitioner’s appeals were decided, did not excuse failure to object. Arce v. Smith, 889 F.2d 1271 (2d Cir. 11/20/1989) (Metzner, Charles M.). Where petitioner did not raise statute of limitations claim at trial, he is foreclosed from raising it on collateral review so court need not consider the effect of petitioner’s failure to raise the issue on direct appeal. Nor can he show cause and prejudice for failing to object to applicable jury instruction. Brennan v. United States, 867 F.2d 111 (2d Cir. 1/20/1989) (Meskill, Thomas J.). Prosecutorial Misconduct Prosecutor’s references to drugs and drug-dealing at defendant’s trial violated trial court’s order, but did not violate defendant’s constitutional rights, as drug evidence could have been admitted to establish motive. Bossett v. Walker, 41 F.3d 825 (2d Cir. 12/1/1994) (Winter, Jr., Ralph K.). Reasonable/Unreasonable Application of Federal Law- See Standard of Review (this heading) Remands/Rehearings

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Where defendant successfully brought a § 2241 motion challenging his gun conviction of 18 U.S.C. § 924(c) under Bailey, he also could be resentenced on his unchallenged drug conviction. Because 28 U.S.C. § 2243’s authorization to “dispose of the matter as law and justice require” is broad enough to allow for resentencing in some circumstances -- i.e., such as when necessary to cure a constitutional defect -- court reads § 2243 as containing an express grant of statutory power under § 3582(c)(1)(B) to resentence in those circumstances. This power permitted resentencing on the unchallenged conviction, as would be so where the motion was brought under § 2255. United States v. Triestman, 178 F.3d 624 (2d Cir. 6/2/1999) (Sotomayor, Sonia). Remedy After granting habeas corpus petition based on appellate counsel’s ineffectiveness, court orders that petitioner be released pending his renewed state court appeal, finding that otherwise any future appellate victory would be pyrrhic, given that petitioner had almost completed serving his sentence. Lynch v. Dolce, 789 F.3d 303 (2d Cir. June 18, 2015) (Lynch). Reopening Proceeding under Rule 60(b) Court addresses when a Rule 60(b) motion to reopen a habeas proceeding should be construed as “a second or successive” habeas petition under the AEDPA and also considers the limited scope of the sixth ground for reopening a judgment, i.e., “any other reason justifying relief from the operation of the judgment.” This requires a showing of “extraordinary circumstances.” To satisfy this standard, a lawyer’s failures must be so egregious and profound that they amount to the abandonment of the client’s case altogether, either through physical disappearance or constructive disappearance. Here, habeas counsel’s failure to argue appellate counsel’s ineffectiveness in not raising certain sentencing issues on direct appeal did not meet this standard, and the Rule 60(b) motion therefore failed in its attack on the integrity of the habeas proceeding. Harris v. United States, 367 F.3d 74 (2d Cir. 5/4/2004) (Jacobs, Dennis G.). Retroactivity Affirming denial of habeas petition filed by petitioner convicted of depraved indifference murder, court holds that the changes in New York State law that modified the mens rea element of depraved indifference murder to make it inapplicable to someone who intends to cause physical injury, was not a mere clarification but rather a change in the law. The New York Court of Appeals has held that this change will not be applied retroactively and the Second Circuit therefore, declines to do so on collateral review, noting that neither due process nor equal protection principles require a different result. Court distinguishes cases in which the Supreme Court has applied a judicially announced change in substantive federal criminal law retroactively on collateral review where the new interpretation established that a prisoner was convicted for an act that the law did not make criminal, and where retroactive application was necessary to avoid a complete miscarriage of justice under exceptional circumstances. See Davis v. United States, 417 U.S. 333, 346 (1974). Henry v. Ricks, 578 F.3d 134 (2d Cir. August 10, 2009) (Cabranes). Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), is not retroactive. In so holding, court declines to decide whether the non-retroactivity provision of 28 U.S.C. § 2254(d)(1), which limits habeas to state court decisions that were contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, was intended to pre-empt retroactivity of new “watershed” rules of procedure or places certain conduct beyond the power of the criminal law-making authority, as authorized by Teague v. Lane, 489 U.S. 288 (1989), or whether it was intended to adopt the Teague exceptions. In analyzing issue, court observes that Crawford, in some cases, will improve the accuracy of the fact-finding process by excluding certain unreliable testimonial hearsay, but it will

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sometimes diminish the accuracy of the fact-finding process by excluding reliable testimonial hearsay. Mungo v. Duncan, 393 F.3d 327 (2d Cir. 12/28/2004) (Leval, Pierre N.). First ruling that the framework established by the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989), applies to petitions for a writ of error coram nobis, court then holds that the change of circuit law requiring a finding of materiality beyond a reasonable doubt in prosecutions under 18 U.S.C. § 1001 is a new rule of constitutional criminal procedure or a novel application of an old rule, and therefore does not apply retroactively unless it falls within one of the two exceptions fashioned by the Supreme Court. It does not come within the first exception because it does not decriminalize certain conduct. Nor is it a “watershed rule of criminal procedure.” Kearse concurs, arguing that, under any circumstances coram nobis -- which applies to defendants who already have served their sentence and therefore acts as an expungement -- should not apply where, as here, there was a finding by a preponderance that defendant was guilty. United States v. Mandanici, 205 F.3d 519 (2d Cir. 2/23/2000) (Cabranes, Jose A.). Rule of Cage v. Louisiana, 498 U.S. 39 (1990), regarding the state trial court’s erroneous definition of reasonable doubt, was a new rule of criminal procedure, but would nonetheless be applied retroactively in habeas proceeding because it is a “watershed rule.” Gaines v. Kelly, 202 F.3d 598 (2d Cir. 2/1/2000) (Cardamone, Richard J.). Rejecting Teague argument, court finds that its decision in Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc), regarding the propriety of closing a courtroom to safeguard a witness, was not a new rule, but rather was a required result under the Supreme Court’s previous decision in Waller v. Georgia, 467 U.S. 39 (1984). English v. Artuz, 164 F.3d 105 (2d Cir. 12/29/1998) (Pooler, Rosemary S.). Consideration of petitioner’s claim, that the trial court erred in failing to instruct the jury on a lesser included offense in non-capital case, is foreclosed because it would require the announcement of a new rule in contravention of Teague v. Lane, 489 U.S. 288 (1989). Jones v. Hoffman, 86 F.3d 46 (2d Cir. 6/13/1996) (per curiam) Court’s application of dual motivation analysis to Batson jury selection issues does not represent a “new rule” within the meaning of Teague v. Lane, 489 U.S. 288 (1989). Howard v. Senkowski, 986 F.2d 24 (2d Cir. 2/17/1993) (Newman, Jon O.). Without deciding whether court would reverse conviction on direct appeal for due process violation, where prosecutor was not an attorney, court holds that such a result would constitute a “new rule” under Teague and therefore would not be applied on habeas corpus, as it was not within either of Teague’s two exceptions. Linares v. Senkowski, 964 F.2d 1295 (2d Cir. 5/26/1992) (Feinberg, Wilfred). Rejecting argument that Teague precludes application to habeas petitioner of new rule regarding granting of habeas where witness recants, since Teague does not come into play when the state’s constitutional violation is the preservation of a conviction despite a credible recantation of material testimony. Additionally, Teague allows retroactive applications of “watershed rules of criminal procedure,” which would include rules directed to the accuracy of a conviction. Sanders v. Sullivan, 900 F.2d 601 (2d Cir. 4/16/1990) (Lumbard, Edward J.). Search and Seizure- See Grounds for Relief -- Fourth Amendment Claims (this heading) Second Petitions -- See Successive Petitions Sentence and Judgment

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Because 28 U.S.C. § 2255 is designed to challenge the validity of a sentence as imposed, and the subsequent decision of a Parole Commission to grant or deny parole is not part of the sentencing process, court lacks subject matter jurisdiction under § 2255 to consider petitioner’s claim that he was wrongly denied parole based on board’s wrongful consideration of certain information. Cabrera v. United States, 972 F.2d 23 (2d Cir. 8/4/1992) (Miner, Roger J.). No federal constitutional issue was presented regarding the length of defendant’s sentence, as sentence was within the statutory range prescribed by state law. White v. Keane, 969 F.2d 1381 (2d Cir. 6/18/1992) (per curiam). Special Needs Doctrine NYPD Interim Order 52 (“IO–52”), which requires the administration of a breathalyzer test to any officer whose discharge of his firearm within New York City results in death or injury to any person, the purposes of which are personnel management of, and public confidence in, the NYPD, is reasonable under the special needs doctrine; these special needs “greatly outweigh officers’ reduced expectation of privacy with respect to alcohol testing at the time of any firearms discharge causing death or personal injury, thereby rendering warrantless, suspicionless IO–52 testing constitutionally reasonable as a matter of law” under the Fourth Amendment. Lynch v. City of New York, 737 F.3d 150 (2d Cir. November 15, 2013) (Raggi). Standard of Review Generally AEDPA deference will not be required where claim was not clearly adjudicated on its merits. Walker concurs. DeBerry v. Portuondo, 403 F.3d 57 (2d Cir. 4/4/2005) (Pooler, Rosemary). Court rejects argument that the state waived the standard of review required by the AEDPA, 28 U.S.C. § 2254(d)(1). This standard is not a procedural defense, but a standard of general applicability for all petitions filed by state prisoners after the statute’s effective date. Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2/12/2003) (Katzmann, Robert A.). Interpreting Arizona v. Fulminante, 499 U.S. 279 (1991), court finds that harmless error analysis applies to habeas petitioner’s unobjected-to absence from a brief in camera questioning of a putative witness who (in violation of the witness rule) was present during the testimony of another prosecution witness. The error was a “trial error” rather than a “structural error.” Here, error was harmless because, per Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), the error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Yarborough v. Keane, 101 F.3d 894 (2d Cir. 12/10/1996) (Leval, Pierre N.). Reasonable/Unreasonable Application of Federal Law Affirming denial of habeas corpus in murder case where shooting victim made various statements to police on the scene and then identified perpetrators in show-up just before he died, court holds that state court’s admission of hearsay under the excited utterance exception was not an unreasonable application of clearly established Supreme Court law with respect to the Confrontation Clause. Further, petitioner is barred by doctrine of Teague v. Lane, 489 U.S. 288 (1989), from invoking the Supreme Court’s subsequent decision in Crawford v. Washington, 541 U.S. 36 (2004). Mungo v. Duncan, 393 F.3d 327 (2d Cir. 12/28/2004) (Leval, Pierre N.).

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State court’s finding that 911 tape bore particularized guarantees of trustworthiness was an unreasonable application of federal law within the meaning of 28 U.S.C. § 2254(d)(1) as there was no reasonable basis in the evidence to find that the caller saw the defendant shooting. Court adds that, whatever might be the proper test of harmless error on habeas, the error in admitting the 911 tapes was not harmless, given that the prosecution’s case was “far from ironclad.” Brown v. Keane, 355 F.3d 82 (2d Cir. 1/8/2004) (Leval, Pierre N.). Standing Generally Dismissal of petitioner’s declaratory action alleging that parts of the AEDPA are unconstitutional is affirmed. Defendant lacked standing because acceptance of his claims would not provide him the relief he seeks, and therefore, there was not the requisite case or controversy. Jenkins v. United States, 386 F.3d 415 (2d Cir. 10/15/2004) (Jacobs, Dennis G.). Next Friend Status Court denies motion to vacate stay of execution and dismisses appeal from denial of habeas brought by supposed “next friend” of condemned capital defendant, as petitioner. Court finds that district court must establish that petitioner Smyth was properly acting as Ross’s next friend and that it does not have a basis adequately to review, and therefore disagree with, the district court’s conclusion that there was “meaningful evidence [before it] that [Ross] was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.” Such evidence is a basis for deciding that Ross is, in fact, not competent to forego his right to bring habeas corpus proceedings, and it was premature for the district court to determine “next friend” standing in the absence of the proceedings it has now ordered. Whenever a capital defendant desires to terminate further proceedings, a hearing on mental competency will obviously bear on whether the defendant is able to proceed on his own behalf. Ross v. Lantz, 396 F.3d 512 (2d Cir. January 25, 2005, as amended, January 26, 2005) (per curiam). On subsequent appeal, court holds that sister of death row inmate could not assert next friend status because inmate had knowingly, intelligently and voluntarily waived his right to proceed and that his access to the court was otherwise unimpeded. Ross v. Lantz, 408 F.3d 121 (2d Cir. 5/12/2005) (per curiam). Successive Petitions Court treats defendant’s motion to recall the court’s mandate as a second habeas petition which may be permitted only if it is based on “newly discovered evidence,” or on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Defendant’s argument, that his drug conviction was unconstitutional given the Supreme Court’s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), overruling Harris v. United States, 536 U.S. 545 (2002), is rejected because Alleyne was not made retroactive by the Supreme Court. The Supreme Court has neither said it is retroactive nor has it placed Alleyne within a category of cases previously held to be retroactive, i.e., new substantive rules that place “‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;’” and new procedural rules that “‘are implicit in the concept of ordered liberty.’” United States v. Redd, 735 F.3d 88 (2d Cir. November 5, 2013) (p.c.). Court denies inmate’s application to file a successive habeas petition alleging he was denied effective assistance by his attorney’s failure to properly advise him regarding a possible guilty plea. To the extent that he previously attempted to litigate the same issue, he may not do so again, and to the extent that his claim is based on the “new” rule announced in Lafler v. Cooper, ––– U.S. ––––, 132 S. Ct. 1376

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(2012), and Missouri v. Frye, ––– U.S. ––––, 132 S. Ct. 1399 (2012), court finds that those cases do not establish a “new” rule and that, to the extent they do, such “new” rule has not been declared retroactive by the Supreme Court. Gallagher v. United States, 711 F.3d 315 (2d Cir. March 28, 2013) (Jacobs). Petitioner’s proposed § 2255 motion to vacate amended judgment of conviction found not to be successive in light of the Supreme Court’s decision in Magwood v. Patterson, ___ U.S. ___ , 130 S.Ct. 2788 (2010), because it is petitioner’s first § 2255 motion challenging the amended judgment of conviction. Court finds that the rule of Magwood applies regardless whether the petition is one brought by a state prisoner under § 2254 or a federal prisoner under § 2255 and it also applies even if the petitioner challenges an unamended portion of his conviction. Johnson v. United States, 623 F.3d 41 (2d Cir. October 8, 2010) (Katzmann). When considering whether to permit a second or successive petition, circuit court, under its gate-keeping role, need determine only whether the petitioner has made a prima facie showing that but for constitutional error, no reasonable factfinder would have found the petitioner guilty, even though the district court must ultimately determine whether to issue the writ, which involves additional considerations, including whether, in rejecting a defendant’s claim of constitutional error, a state court made a decision that was contrary to, or involved an unreasonable application of, clearly established law, as determined by the Supreme Court. Circuit court’s gate-keeping role does not oblige (or even permit) it to make the decision on the sometimes “close question” of whether a state court has made an unreasonable application of established constitutional law. Here, court grants petitioner permission to file a second habeas petition, finding he made a prima facie showing, based on recantation of principal prosecution witness and resulting inference that he was convicted based on perjurious testimony, that his constitutional rights were violated and that but for the error he would not have been convicted of murder. Court concludes similarly with respect to Petitioner’s Brady-Giglio claim, alleging that the police threatened and isolated the recanting witness to induce the false testimony. Quezada v. Smith, 624 F.3d 514 (2d Cir. October 21, 2010) (Newman). Habeas petitioner need not obtain leave to file a successive petition where his first petition claimed he was denied effective assistance of counsel by his attorneys’ failure to file a timely notice of appeal, and resulted in the vacating of the initial judgment so an appeal could thereafter be filed. Wall v. United States, 619 F.3d 152 (2d Cir. September 2, 2010) (per curiam). Defendant’s prior habeas petition seeking to file late notice of appeal based on counsel’s ineffectiveness did not count as a prior petition in determining whether his proposed petition was “second or successive” under the AEDPA and petitioner therefore did not require leave of the court to file the proposed petition. Urinyi v. United States, 607 F.3d 318 (2d Cir. June 14, 2010) (per curiam). Petitioner’s proposed 28 U.S.C. § 2255 motion was not a “second or successive” motion under 28 U.S.C. § 2255(h) because it sought only to reinstate his direct-appeal rights and did not challenge the legality of the sentence imposed, and court therefore transfers the matter to the district court with instructions that the new § 2255 motion be accepted for filing. While petitioner’s proposed claim “concern[s]” his November 2009 conviction, it does not “attack” that conviction. Carranza v. United States, 794 F.3d 237 (2d Cir. July 21, 2015) (p.c.). Where district court transferred defendant’s second habeas to the court of appeals for consideration of whether he should be permitted to file a successive petition, his remedy is to move before the circuit court to re-transfer the case, rather than to appeal the transfer. Here, court finds that defendant’s petition in fact was a successive petition, rather than an initial petition following the district court’s issuance of an amended judgment (see Magwood v. Patterson, 561 U.S. 320 (2010)) because the

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amended judgment merely corrected ministerial errors. Marmolejos v. United States, 789 F.3d 66 (2d Cir. June 4, 2015) (Kearse). Petitioner’s motion to file a successive petition is dismissed as unnecessary as his previous habeas – which was denied – was for the purpose of obtaining a direct appeal and did not directly attack his conviction or sentence. Vu v. United States, 648 F.3d 111 (2d Cir. June 7, 2011) (per curiam). Petitioner’s habeas petition alleging the trial court lacked jurisdiction was wrongly brought under 28 U.S.C. § 2241 when in fact it should have been filed under 28 U.S.C. § 2255 and, as such, was a “second or successive petition” that did not come within any of the exceptions of 28 U.S.C. § 2255(h), i.e., it did not assert either “(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Thompson v. Choinski, 525 F.3d 205 (2d Cir. May 8, 2008) (Leval). Court denies without prejudice petitioner’s application to file a successive habeas petition based on an unsworn recantation by a former government witness. Such an application can be granted only upon a showing of prima facie evidence that the newly discovered evidence would establish by clear and convincing evidence that no reasonable factfinder would have found defendant guilty. Though a prima facie showing is not a particularly high standard, recantations are viewed with the utmost suspicion because they upset society’s interest in finality of convictions, are very often unreliable and given for suspect motives, and most often serve merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction. Here, the new “evidence” was a letter from co-conspirator Ressam to the U.S. Attorney’s Office that is general, unsworn, and conclusory and is insufficient to contradict sworn trial testimony. Such unsworn recantations do not constitute “evidence” within the meaning of 28 U.S.C. 2244(b)(2)(B), much less clear and convincing evidence. Haouari v. United States, 510 F.3d 350 (2d Cir. December 17, 2007) (Walker). Petitioner’s habeas petition was not a “successive” petition because his request for a COA to appeal the denial of his first petition was pending when he filed his second petition. This result doesn’t change because his COA was denied before the instant decision was rendered. The critical date for this purpose is the date the second petition was filed. At n.2 court states that its disposition does not provide a “free pass” to prisoners to file numerous petitions before an initially filed petition is finally adjudicated on the merits as traditional doctrines, such as abuse of the writ, continue to apply. Whab v. USA, 408 F.3d 116 (2d Cir. 5/19/2005) (Leval, Pierre N.). Petitioner’s application to file a second or successive § 2255 petition is denied because neither Booker nor Blakely apply retroactively to a successor petition, because neither is a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. Green v. United States, 397 F.3d 101 (2d Cir. 2/2/2005) (per curiam). Dismissal of habeas petition as untimely under the one-year statute of limitations of 28 U.S.C. § 2244(d)(1) renders future petition “second or successive” and subject to the requirements of 28 U.S.C. § 2244(b)(1) through (4). Here, neither petition relies on either a new rule of constitutional law or a previously undiscoverable factual predicate, and court therefore denies petitioners’ motions to filed successive petitions. Murray v. Greiner, 394 F.3d 78 (2d Cir. 1/5/2005) (Leval, Pierre N.). Court refuses to authorize petitioner to file a second petition, per 28 U.S.C. § 2255, because he sought to raise a Blakely issue, but Blakely has not been held by the Supreme Court to be a new rule of

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constitutional law to be applied retroactively. 11/29/2004) (per curiam).

Carmona v. United States, 390 F.3d 200 (2d Cir.

Court finds that defendant’s initial habeas corpus petition, which was dismissed at petitioner’s request and not on the merits, did not count as a first motion for purposes of the gatekeeping provisions of the AEDPA. The reasons for which a petitioner withdraws a § 2255 petition should govern the analysis of whether that petition counts for successive purposes, at least where the reasons for withdrawal are reasonably discernible. Here, the circumstances do not provide a clear indication that petitioner regarded his initial petition as meritless when he moved to withdraw it, and court therefore holds that his new petition is not a second or successive one under the AEDPA. Thai v. United States, 391 F.3d 491 (2d Cir. 11/23/2004) (per curiam). Where a prisoner brings a petition under 28 U.S.C. § 2241 in an attempt to evade § 2255’s gatekeeping limits on second or successive petitions, the district court can treat the § 2241 petition as a second or successive § 2255 petition and refer the petition to the circuit court for certification, or, if it is plain from the petition that the prisoner cannot demonstrate that a remedy under § 2255 would be inadequate or ineffective to test the legality of his detention, the district court may dismiss the §2241 petition for lack of jurisdiction (which is what the district court did, properly, in the instant case). Adams v. United States, 372 F.3d 132 (2d Cir. 6/16/2004) (Cardamone, Richard J.). Court need not decide whether the AEDPA applies to successive petition where the first petition was filed pre-AEDPA, because even under the previous habeas rules, petitioner’s application to file a second habeas petition is foreclosed under Coleman v. United States, 329 F.3d 77 (2d Cir. 2003), which holds that Apprendi is a new, but not a watershed, procedural rule that does not apply retroactively to initial motions to vacate. Under Coleman, because petitioner cannot meet the pre-AEDPA requirements for raising a claim in a successive petition, AEDPA has no impermissible retroactive effect in this case. Maldonado v. United States, 344 F.3d 244 (2d Cir. 9/17/2003) (per curiam). AEDPA’s authorization requirement with respect to second habeas application is jurisdictional and therefore cannot be waived. Moreover, the authorization requirement applies to all second and successive habeas petitions, even those that may be governed by the pre-AEDPA abuse-of-the-writ standard. Torres v. Senkowski, 316 F.3d 147 (2d Cir. 1/9/2003) (Sack, Robert D.). Petitioner’s previous habeas petition under 28 U.S.C. § 2254, seeking release from detention on account of unreasonable delay in state appellate review process, did not count in determining whether a later petition would be “second or successive” within the meaning of § 2254, because the previous petition did not attack the underlying judgment of conviction. Vasquez v. Parrott, 318 F.3d 387 (2d Cir. 1/29/2003) (Leval and Calabresi). District court erred when it construed petitioner’s motion to amend his habeas petition as an application for leave to file a second or successive § 2254 petition. A motion to amend a habeas petition should not be so construed, but rather should be considered under Fed.R.Civ.P. 15, which governs motions to amend generally in civil actions. Littlejohn v. Artuz, 271 F.3d 360 (2d Cir. 11/14/2001) (per curiam). Applying requirement of 28 U.S.C. § 2255, that a successive petition may only be authorized where the motion relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” court finds that petitioner’s application to file a successive petition to raise Apprendi argument would be denied, as no pronouncement has yet been made by the Supreme Court on the retroactivity of Apprendi. Forbes v. United States, 262 F.3d 143 (2d Cir. 8/16/2001) (per curiam).

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Where certain claims in habeas petition had been dismissed as procedurally defaulted, they were adjudicated on their merits, and petitioner’s re-assertion of those claims after having argued ineffective assistance of appellate counsel in a state coram nobis petition, constituted a successive petition, which court finds does not satisfy the requirements of 28 U.S.C. § 2244(b). Court notes that coram nobis petition only could argue ineffective assistance of counsel, and therefore did not exhaust the issues upon which petitioner had been found to have defaulted. Turner v. Artuz, 262 F.3d 118 (2d Cir. 8/13/2001) (per curiam). Successive petition rules of the AEDPA, 28 U.S.C. § 2244(b), do not apply to claims dismissed for failure to exhaust, and petitioner therefore did not require circuit court’s authorization to re-file the claim. Court also holds (1) that a Rule 60(b) motion to vacate a judgment denying habeas is not a second or successive petition, but that (2) Brady claim was properly excluded as a successive claim even under pre-AEDPA law, as petitioner failed to show either cause and prejudice or a fundamental miscarriage of justice per McClesky v. Zant, 499 U.S. 467 (1991). Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 6/6/2001) (Leval, Pierre N.). Court holds that present petition is not a “second or successive” petition within the meaning of the habeas corpus statute, 28 U.S.C. § 2255 (requiring leave of the court to file), but rather is properly characterized as a “first” petition, since her previous petition was not adjudicated on the merits, but rather was wrongly dismissed as untimely. Muniz v. United States, 236 F.3d 122 (2d Cir. 1/2/2001) (per curiam). Where court vacates district court’s disposition of habeas petition, defendant’s next petition for a writ of habeas corpus, should he choose to file one, does not count as a “second or successive petition” for purposes of the limits that the AEDPA places on such petitions. On the merits, court denies defendant’s claim of ineffective assistance of counsel, based on counsel’s alleged -- but unproven -failure to explain to defendant plea offer and the perils of going to trial. United States v. Pena, 233 F.3d 170 (2d Cir. 11/22/2000) (per curiam). Per Slack v. McDaniel, 529 U.S. 473, 486 (2000), a habeas petition dismissed for lack of exhaustion is not counted as a previous petition for purposes of the “second or successive petition” rule. Sacco v. Cooksey, 214 F.3d 270 (2d Cir. 6/6/2000) (per curiam). Court finds that a motion for leave to file a successive petition under 28 U.S.C. § 2255 was unnecessary, because previous motion was made pre-sentence under Fed.R.Crim.P. 33, and therefore would not be considered a prior motion under § 2255 under the AEDPA. Stantini v. United States, 140 F.3d 424 (2d Cir. 4/1/1998) (Parker, Fred I.). Petitioner’s § 2255 petition is not a “second or successive” petition for purposes of the gatekeeping requirements of the AEDPA, given that his original sentence was vacated as a result of his first petition, and the pending petition challenges only the aspects of the sentence that were amended by the new judgment. Esposito v. United States, 135 F.3d 111 (2d Cir. 11/21/1997) (per curiam). Court remands case for district court to determine whether petitioner’s § 2254 petition is successive within the meaning of sections 105 and 106(b) of the AEDPA. Thomas v. Superintendent/Woodbourne Corr. Facility, 136 F.3d 227 (2d Cir. 11/21/1997) (per curiam). Whenever a first § 2255 petition succeeds in having a sentence amended, a subsequent § 2255 petition will be regarded as a “first” petition only to the extent that it seeks to vacate the new, amended component of the sentence and will be regarded as a “second” petition to the extent that it challenges the

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underlying conviction or seeks to vacate any component of the original sentence that was not amended, which was the case here. Galtieri v. United States, 128 F.3d 33 (2d Cir. 10/29/1997) (Newman, Jon O.). Court vacates judgment of district court denying on the merits successive petition under 28 U.S.C. § 2255, because petitioner had failed to obtain an order from the court of appeals under 28 U.S.C. § 2244 authorizing the filing of such a successive petition in the district court. Nelson v. United States, 115 F.3d 136 (2d Cir. 5/30/1997) (Haight, Jr., Charles S.). Because petitioner’s prior motions, however labeled, should have been construed as petitions filed under 28 U.S.C. § 2241 (appropriate to challenge sentence computations and execution of sentence), and not § 2255 (used to challenge sentence that is imposed in violation of the Constitution or the laws of the United States; or where the court was without jurisdiction to impose the sentence; or where the sentence was in excess of the statutory maximum), petitioner’s first § 2255 petition in the instant matter is not a “second or successive” motion per § 2244 (the gatekeeping provision upheld in Felker v. Turpin, 518 U.S. 651 (1996)), and court’s authorization to proceed is therefore not necessary. Chambers v. United States, 106 F.3d 472 (2d Cir. 2/7/1997) (Winter, Jr., Ralph K.). Petitioner was not entitled to relitigate claim raised in previous direct appeal and in previous habeas petition, absent an intervening change of law, which would change the outcome, and where review was not otherwise required to serve the ends of justice. Cabrera v. United States, 972 F.2d 23 (2d Cir. 8/4/1992) (Miner, Roger J.). Teague Issues – See Retroactivity (this Heading) Three Strikes Rule Reversing dismissal of habeas corpus petition for failure to pay filing fee after court denied in forma pauperis status under the three strikes provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), court holds that dismissals of habeas petitions and appeals from habeas petitions challenging the duration of an inmate’s confinement are not strikes under the three strikes provision of the PLRA since they are not “civil” in nature. Jones v. Smith, 720 F.3d 142 (2d Cir. 2013) (Katzmann). Timeliness - See Limitations/Timeliness/Laches Transcripts Per 28 U.S.C. § 753(f), petitioners under 28 U.S.C. § 2255 who are granted in forma pauperis status are entitled to a free transcript if their suit or appeal is certified by the judge not to be frivolous, but said right ripens only after proceedings are initiated, not before. United States v. Horvath, 157 F.3d 131 (2d Cir. 9/21/1998) (per curiam). Waiver At n.8, court observes that, “While it is true that Batson objections are waived if not restated in the federal district courts, on a habeas petition challenging a state judgment, waiver is a function of state procedures.” Pooler dissents. Sorto v. Herbert, 497 F.3d 163 (2d Cir. March 9, 2007) (Jacobs) (amended August 10, 2007). Defendant did not waive Batson challenge since the trial judge, in fact, ruled on the credibility of the prosecutor’s explanations for his strikes. Further, respondent cannot import a federal procedural rule into § 2254 review of a state court decision since on § 2254 review, court will rely on state, not federal,

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procedural rules, and waiver on which the state court did not explicitly rely will not bar court’s review of the merits. DeBerry v. Portuondo, 403 F.3d 57 (2d Cir. 4/4/2005) (Pooler, Rosemary S.).

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